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2002 DIGILAW 464 (JHR)

SANTOSH TIU v. STATE OF BIHAR

2002-04-05

LAKSHMAN URAON, VIKRAMADITYA PRASAD

body2002
Judgment : LAKSHMAN URAON. J. ( 1 ) 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 Sections 302/34 of the Indian Penal Code. However, no separate sentence was passed under Sections 201/34 of the Indian Penal Code. ( 2 ) THE prosecution case as per the fardbeyan 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 Saraswati Tiu (PW 5) had slept inside the room. On the varandah, his mother Radha Tiu and sister Sumitra Tiu (both deceased) were sleeping on a Khat towards west of varandah. 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 infonnant 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 Chor-Chor. After sometimes he carrie out of his home and saw that Suresh Tiu and Santosh Tiu alongwith others had already taken away his mother and sister. The informant went to his Mama Saluka Khandegeya PW4 and awoke him. He also went to the neighbourers home awoke them, brought them to his home and narrated the story. He alongwith 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 neighbourers home awoke them, brought them to his home and narrated the story. He alongwith 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 alongwith 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 fardbeyan to the police. He has alleged that about 1 and 1/2 month 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 placed 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 Sections 302/34 of the Indian Penal Code. However, no separate sentence was awarded for the charge under Sections 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. However, no separate sentence was awarded for the charge under Sections 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 fardbeyan has alleged that on 9/7/1988 i. e. one and half month 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 Khandegya PW 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 alongwith 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 verandah 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 PW 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 had not been seized by the Investigating Officer. 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 had 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 Chor-Chor by remaining inside his home. On hull a 5 to 10 Mohalla 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 head and at some distance the dead body of his sister Sumitra Tiu was also found, having rope tied ion her neck. Both the dead bodies were kept under the watch of his Mama PW 4. PW 1 did not informant 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 names of the appellants to his brother Bikram Tiu. When he came back alongwith his brother Bikram Tiu, then the police had already arrived at the place of occurrence. His fardbeyan 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 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 Han 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 alongwith other villagers. The informant PW 1, even in the morning did notdisclose 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 dead bodies were found. PW 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. PW 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 their home. This witness in paragraph No. 3 has developed the story by saying that PW 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 Dians. 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. 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 PW 4 is inadmissible. ( 7 ) PW 5 is Sarswati Tiu (wife of the informant PW 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 inner door of that room was opened. At about midnight she came out by opening the door and saw Suresh Tiu and Santosh Tiu alongwith eight others, who had entered. In the light of Dhibri he identified only Suresh and Santosh (the appellants), who took her mother-in-law and Nanad. Her husband PW 1 raised hulla. She also raised halla. Saluka Khandegeya PW 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 PW 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 PW 5 were slee. ping inside the room and heard the cry of Radha Tiu and Sumitra Tiu, then they lit the Diya. If it is supposed that PW 1 and PW 5 were slee. ping 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 Chor-Chor and claimed to have identified these appellants through thehalf opened door. On the other hand, the evidence of another eye-witness PW 5 indicates that the door towards varandah was closed and the inner door i. e. another second door was half opened. When she PW 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 PW 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 bodies. 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 (PW 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 PW 1 (Mohan Lal Tiu) and PW 5 (Saraswati Tiu) were sleeping. 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 PW 1 (Mohan Lal Tiu) and PW 5 (Saraswati Tiu) were sleeping. On the varandah in the eastern portion PW 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 PW 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 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 PW 1 and PW5 (husband and wife), the only eyewitnesses 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 ). 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 claimsthat 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 PW 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 PW I did not disclose the name 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 could the dead bodies of both Radha Tiu and Sumitra Tiu were found in Horlo village. In the morning also the informant PW 1 did not disclose the names of these appellants before the villagers, who had gone in search of Radha 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 N agar 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 fact as to whether PW 1 and PW 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 their room 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. It is also not clear as to whether they saw these appellants from their room 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 eyewitnesses namely PW 1 and PW 5 creates doubt in my 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 witness has come forward to support the prosecution. The elder brother of the informant PW 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 PW 1 and his wife Sarswati Tiu PW 5. Accordingly. I come to the conclusion that it was possible to identify these appellants, in the circumstances as discussed by me in the above paragraphs. In my view, there is doubt regarding involvement 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 am. the dead bodies of Radha Tiu and Sumitra Tiu were found. The doctor PW 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. Appeal allowed. --- *** --- .