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2002 DIGILAW 796 (JHR)

Hulash Singh v. State of Bihar

2002-07-30

VISHNUDEO NARAYAN

body2002
Judgment Vishnudeo Narayan, J.-This appeal has been directed by the appellants named above against the judgment and order dated 12.8.1996 passed in Sessions Trial No. 365 of 1989 by Sri Subhas Chandra Jha, Additional Sessions Judge, Bermo at Tenughat whereby all the appellants beside3 one Bhikhari Singh were found guilty for the offence punishable under sections 364/34, 342/34,201/34 and 452 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for seven years for the offence under section 364/34 I.P.C., R.I. for three years for the offence under section 452 I.P.C., R.L for six months and two years for the offence under sections 342/34 and 201/34 I.P.C. respectively. All the sentences were, however, ordered to run concurrently. Convict Bhikhari Singh was sentenced to undergo RL for ten years for the offence under section 364/34 I.P.C., R.I. for three years for the offence under section 452 I.P.C., R.I. for six months for the offence under section 342/34 I.P.C. and R.I. for two years for the offence under section 201/34 I.P.C. However, the appellants along with Bhikhari Singh were not found guilty for the offence under section 302 I.P.C. It is pertinent to mention at this stage that convict Bhikari Singh is not the appellant here. 2. The prosecution case has arisen on the basis of the F.I.R. of Bhuneshwar Mahto lodged before Gomia P.S., District Giridih on 7.5.1988 at 12.00 hours regarding the occurrence which is said to have taken place on 6.5.1988 at 18.00 hours in village Pejua, P.S. Gomia, District Giridih (now Bokaro). 3. 2. The prosecution case has arisen on the basis of the F.I.R. of Bhuneshwar Mahto lodged before Gomia P.S., District Giridih on 7.5.1988 at 12.00 hours regarding the occurrence which is said to have taken place on 6.5.1988 at 18.00 hours in village Pejua, P.S. Gomia, District Giridih (now Bokaro). 3. The prosecution case, in brief, is that three years old son of covict Bhikari Singh had died on 6.5.1988 in the day and he has levelled the allegation of witchcraft against Ugni Devi, an old woman of 60 years, for causing the death of his son and the said Ugni Devi is the aunt of this informant and the mother of P.W. 4, Teko Mahto and since then convict Bhikari Singh was in search of Ugni Devi and at about 6.00 O'clock in the evening convict Bhikari Singh and appellants Amrit Singh and Bhuneshwar Singh armed with 'Farsa' and 'Subble' forcibly dragged Ugni Devi from her house and brought her to the house of convict Bhikari Singh and had confined her in the room where the dead body of his son was lying and had closed the room and convict Bhikari Singh was uttering that she shall not be let off unless her dead son is made alive. It is alleged that the informant learnt the aforeaid incident from P.w. 1, Dharni Devi, wife of P.W. 4, Teko Mahto when he returned at 7.30 hours on that day from his work in the forest department. The prosecution case further is that when he went to the house of convict Bhikhari Singh he found all the appellants along with convict Bhikhari Singh there and convict Bhikari Singh was armed with• a 'Farsa' and she has caused the death of his son and she will be done to death if his dead son is not made alive. It is also alleged that convict Bhikari Singh had tied the hand and leg of Ugni Devi and had confined her in a room with the dead body of his son. The informant thereafter went to the house of Samsuddin Ansari and told him about the occurrence and at his instance he went to Hafiz Ansari, Secretary Gram Lodi and reported the matter to him and Md. The informant thereafter went to the house of Samsuddin Ansari and told him about the occurrence and at his instance he went to Hafiz Ansari, Secretary Gram Lodi and reported the matter to him and Md. Hafiz Ansari asked the convict Bhikari Singh to let off Ugni Devi but all in vain and at the instance of Hafiz Ansari he informed the village Chawkidar Sanichar Turi and thereafter returned to his house and saw Bhikhari Singh carrying the dead body of his son on his shoulder going towards north of the village and the other appellants Were dragging Ugni Devi assaulting her and thereafter they went inside the forest. It is also alleged that he raised alarm but no person of the village came to her rescue. Lastly it has been alleged that convict Bhikhari Singh along with the appellants has taken away Ugni Devi in the forest with intention to commit her murder. 4. The appellants have pleaded not guilty to the charges levelled against them and claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case. 5. The prosecution has examined in all four witnesses to substantiate the charges levelled against the appellants. P.W. 4, Teko Mahto is the son of Ugni Devi, the victim of this case. P.W. 1, Dharni Devi is the wife of P.w. 4. P.W. 2, Nagina Devi is the daughter of P.W. 4, Teko Mahto and P.w. 3, Jodha Mahto is the cousin brother of the husband of Ugni Devi aforesaid. Sanichar Turi, the village Chawkidar has taken oath in his case as court witness no. 1. It is relevant to mention here that the informant and the I.O. have not taken oath in this case for the prosecution and there is no material on the record such as inquest report, post mortem report or evidence of the medical witness to show and establish the murder of Ugni Devi by the appellants besides convict Bhikhari Singh. However, on the basis of the evidence aforesaid, the learned court below has found all the appellants besides Bhikari Singh guilty for the charges levelled against them except for the charge under section 302 I.P.C. and they were convicted and sentenced as stated above. 6. However, on the basis of the evidence aforesaid, the learned court below has found all the appellants besides Bhikari Singh guilty for the charges levelled against them except for the charge under section 302 I.P.C. and they were convicted and sentenced as stated above. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that there is no iota of legal evidence at all on the record connecting or implicating the appellants for the offence in question and no independent witness of the village has taken oath in this case for the prosecution and all the four witnesses are inter se related. It has also been submitted that neither the informant nor the I.O. has been examined for the prosecution in this case and serious prejudice has been caused to these appellants. It has also been submitted that there is no circumstantial evidence at all on the record against these appellants and testimony of P.W. 1 itself is sufficient to disbelieve the prosecution case. It has also been submitted that P.W. 3 has turned hostile and he does not at all support the prosecution case whereas P.W. 4 is a hearsay witness. It has also been submitted that the learned court below has erred gravely in coming to the conclusion of the guilt of the appellants and the impugned judgment is totally based on surmises and conjectures and not at all on the basis of the evidence on the record. 7. The learned A.PP has submitted that many innocent lives are lost due to the superstition prevalent in the society especially among the villagers and due to this superstition Ugni Devi has been kidnapped and done to death and in this view of the matter there is no illegality at all in the impugned judgment. 8. It is pertinent to mention at the very outset that informant Bhuneshwar Mahto has not taken oath in this case for the prosecution and non-examination of the informant in this case is a fatal lacuna of the prosecution case. 8. It is pertinent to mention at the very outset that informant Bhuneshwar Mahto has not taken oath in this case for the prosecution and non-examination of the informant in this case is a fatal lacuna of the prosecution case. P.W. 1 Dharni Devi, the daughter-in-law of Ugni Devi, the alleged victim of this case, in her examination-in-chief has no doubt stated that all the appellants forcibly entered into her house and had taken away Ugni Devi with them forcibly dragging her in her presence as well as in the presence of her daughter Nagina Devi and thereafter she was taken away to the jungle by them and since then she has not returned. She has also deposed that she has been done to death and her dead body was thrown into the water and her dead body was recovered on Sunday from Barkadah. It is equally pertinent to mention here that there is neither inquest report nor the post mortem report on the record regarding kidnapping of Ugni Devi and further more the I.O. and doctor have also not taken oath in this case. Therefore, the court below has rightly found the appellants not guilty for the offence under section 302 I.P.C. The evidence of pw. 1 appearing in para 14 at page 9 of her deposition completely belies the prosecution case regarding kidnapping of Ugni Devi in the manner as alleged and also committing her murder. She has deposed that when she returned from the P.S. to her house along with Sarpanch and Mukhiya then she had a talk with Ugni Devi for 11/2 hours and thereafter she has brought Ugni Devi to Bishungarh where she was treated for four days. She has further deposed that thereafter she was taken to Giridih Hospital for treatment and again from there to Gomia Hospital. She has further deposed that O/C Gomia P.S. came there and she was directed to take away dead body of Ugni Devi to her house. In para 15 she has categorically stated that P.W 3 Jodha Mahto and her daughter P.W.2 Nagina Devi were all along present with her at the aforesaid place. She has also deposed in the most and unequivocal terms that she has deposed in this case in the most conscious state and understanding all the matters. In para 15 she has categorically stated that P.W 3 Jodha Mahto and her daughter P.W.2 Nagina Devi were all along present with her at the aforesaid place. She has also deposed in the most and unequivocal terms that she has deposed in this case in the most conscious state and understanding all the matters. P.W. 2, Nagina Devi has deposed that at the time of the occurrence she has not gone out of her house. She has also deposed that she has not seen Bishnugarh. Her evidence is in conflict with the testimony of P.W. 1, her mother. P.W 3, Jodha Mahto has deposed that he has not seen the occurrence and he has no knowledge or information regarding the occurrence. P.W. 4 has deposed to have learnt about the occurrence from the informant. C.W. 1, the court witness has deposed that he has made search of Ugni Devi with Hafiz Ansari and Anup Mahto but she could not be found. The evidence of P.W. 1 Dharni Devi referred to above clearly indicate that the testimony of P.W. 2 and C.W 1 cannot be said to be credit worthy. P.W. 1 has specifically deposed that when she returned from the P.S. she has found Ugni Devi in her house and she had a talk with her for 11/2 hours and thereafter she has brought her for treatment. In view of this evidence, the prosecution case that the appellants have kidnapped Ugni Devi with intention to commit her murder falls flat and on this score alone the prosecution case is fit to be thrown; I see substance in the submission of the learned counsel for the appellants that the testimony of P.W. 1 itself is sufficient to disbelieve the prosecution case. The learned court below did not consider meticulously the evidence of P.W. 1 referred to above and has erred in coming to the finding of guilt of the appellants in this case. It is pertinent to mention at this stage that there is no legal evidence at all on the record warranting the conviction of the appellants. 9. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the learned court below is hereby set aside. It is pertinent to mention at this stage that there is no legal evidence at all on the record warranting the conviction of the appellants. 9. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the learned court below is hereby set aside. The appellants are not found guilty of the charges levelled against them and they are acquitted and they are discharged from the liability of their bail bonds.