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2003 DIGILAW 803 (JHR)

Bajun Tudu v. State of Bihar (now Jharkhand)

2003-07-11

VISHNUDEO NARAYAN

body2003
Judgment By Court.- The appellants named above have preferred this appeal against the impugned judgment and order dated 30.06.1990 passed in Sessions Case No. 302 of 1984/55 of 1989 by Shri Arun Chandra Das, 3rd Additional Sessions Judge, Dumka whereby and whereunder appellant Sarkar Murmu and Mansa Hembrom were found guilty for the offence punishable under Section 436 of the Indian Penal Code and 147 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for three years for the offence under Section 436 of the Indian Penal Code and for a period of three months for an offence punishable under Section 147 of the Indian Penal Code and the rest of the appellants were also found guilty for the offence punishable under Section 147 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for three months. However, co-accused Sanatan Tudu, Robin Tudu, Manohar Marandi, Bhunda Tudu, Hopna Tudu, Babudhan Hembram and Debi Hembram were not found guilty on any count and they were, accordingly, acquitted. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of PW.1, Srinath Bowry, the informant recorded by S.I. Md. Muslim of Fatehpur outpost within Kundahit PS. on 15.06.1982 at 20.00 hours at village Dhasania regarding the occurrence which is said to have taken place on that very day at 17.00 hours and on the basis of the said fardbeyan, case was instituted against the appellants and other co-accused persons by drawing a formal F.I.R. (Ext. 3) on 16.06.1982 at 9.00 hours which was received in the court empowered to take cognizance on 18.06.1982. 3. The prosecution case, in brief, is that Sita Ram Bauri, Sridhar Bauri and Bepal Bauri along with some female of his village Dhasania had gone to pick up Mahua fruits of their trees in Kosaidih jungle, east of their village on 08.06.1982 and appellant Sarkar Murmu resident of village Kaludih has also his Mahua tree there. It is alleged that on that day appellant Sarkar Murmu, Baijun Tudu, Hopa Tudu and Shyam Lal Murmu and others came there and abused them for picking up Mahua fruits and also assaulted them and snatched the Mahua fruits collected by them and intimidated them that all the Bauries shall be assaulted and compelled to flee away from their village on the beat of the drum. The prosecution case further is that at about 5 o'clock in the evening of 15.06.1982 all the appellants along with acquitted accused persons in the company of 30-40 unknown persons variously armed with lethal weapons such as bow, arrow, axe and lathi forming an unlawful assembly with the object of causing destruction to the houses of the Bauries and to compel them to leave their village Dhasania, came there beating the drum and abused them and they were abeting and instigating for setting fire to the houses of the Bauries. It is also alleged that the informant besides all the residents of the Bauritola of village Dhasania left their village and went to the nearby tola i.e. Bangalipara of the said village and they have seen the appellants and others setting fire to the house of Sridhar Bauri and PW.4 Ratan Bauri and causing damage to the other houses of the Bauries and they have also taken away goat, cock, besides jack fruits of the two trees all worth Rs. 1,000/-. The prosecution case further is that the attempt of the police party to prevent the occurrence has also gone in vain. 4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case due to enmity existing and alive prior to the occurrence between the parties. 5. The prosecution has in all examined 11 witnesses to substantiate its case. PW.1, Srinath Bauri is the informant of this case. PW.4, Ratan Bauri, PW.9 Saju Bauri and PW.S Ati Bauri besides the informant are the ocular witnesses of the occurrence of setting fire to the houses of Sridhar Bauri and Ratan Bauri. PW.6, Anand Gopal Singh, PW.7, Siba Paharia and PW.8, Gaur Rai also claim themselves to be the ocular witness of the occurrence. PW.5, Mitan Bauri and PW.2, Kala Bauri have been tendered. P.W10 Yugeshwar Singh and P.W11 Md. Muslim are the Investigating Officers of this case. 6. PW.6, Anand Gopal Singh, PW.7, Siba Paharia and PW.8, Gaur Rai also claim themselves to be the ocular witness of the occurrence. PW.5, Mitan Bauri and PW.2, Kala Bauri have been tendered. P.W10 Yugeshwar Singh and P.W11 Md. Muslim are the Investigating Officers of this case. 6. In view of the oral and documentary evidence on the record and having relied upon the evidence of P.WA, P.W3 and P.W.9 read with the testimony of P'W1, the informant, the learned court below found the appellants guilty for the offence under Sections 147 and 436 of the Indian Penal Code and, accordingly, convicted and sentenced them as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned court below did not scan the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants and there is no legal evidence on the record to substantiate the facts that the appellants were the members of an unlawful assembly with an unlawful object as alleged and they were the participants in the occurrence in question and they have been named in this case in view of the admitted enmity existing and alive between the Bauries of village Dhasania and these appellants regarding picking up of the Mahua fruits in Kosaidih jungle and the existence of this enmity stands admitted by the informant in the fardbeyan (Ext. 2) itself. It has further been submitted that as per the prosecution case all the inhabitants of Bauritola of village Dhasania including the prosecution witnesses of this case had escaped from there and had taken shelter in Bangalitola of the said village which is at the very considerable distance from Bauritola and it is hightly improbable that the prosecution witnesses had any occasion to see the occurrence and identify the appellants among large number of persons who had formed the unlawful assembly. It has also been contended that police force was stationed in the village but they do not figure as witness of the prosecution in this case and as such an adverse inference has been drawn to the authenticity of the prosecution case as averred in the fardbeyan. It has also been contended that police force was stationed in the village but they do not figure as witness of the prosecution in this case and as such an adverse inference has been drawn to the authenticity of the prosecution case as averred in the fardbeyan. Lastly it has been contended that there is no iota of evidence on the record to prove the genesis and motive for the occurrence as averred in the fardbeyan of the informant and, thus, the impugned judgment is unsustainable. 8. Refuting the contention aforesaid the learned A.P.P. has submitted that the occurrence has definitely taken place in which the house of the Bauries were rlamaged by the unlawful mob and house of Sridhar Bauri and Ratan Bauri were set on fire and the appellants were identified by PW. 4, P.W 3 P.W. 9 and P.W 1, the informant as a member of the said unlawful assembly as participants in the occurrence in question. The I.O. in his objective finding has found the damage caused to the houses of the Bauries and burnt houses of Sridhar Bauri and Ratan Bauri in course of investigation. The occurrence in question has taken place at 17.00 hours on 15.06.1982 i.e. in summer season and the identification of the appellants as a participant in the occurrence by the prosecution witness is probable and equally reliable and viewed thus there is no infirmity in the impugned judgment. 9. It will admit of no doubt that occurrence had taken place at 17.00 hours on 15.06.1982 in Bauritola of village Dhasania in which the houses of Sridhar Bauri and P.WA, Ratan Bauri were 'burnt to ashes and several houses of the Bauri communities situate in the Bauritola of the said village was destroyed by an unlawful mob armed with lethal weapons and the police force stationed there could be of no help to prevent the destruction aforesaid P.W 11, Md. Muslim has deposed to have inspected the place of occurrence at 6.00 hours on the following day of the occurrence which is in Bauripara situate in the southern side in village Dhasania and he found houses of PW. 4 Ratan Bauci and Sridhar Bauri burnt. He has also deposed to have found 15-16 houses of the Bauri communites destroyed. He has also deposed to have found several trees of jack fruits and papaya destroyed. 4 Ratan Bauci and Sridhar Bauri burnt. He has also deposed to have found 15-16 houses of the Bauri communites destroyed. He has also deposed to have found several trees of jack fruits and papaya destroyed. The objective finding of the I.O. referred to above, therefore, establishes the fact that the houses of the Bauries communities were burnt and damaged. PW. 1 Srinath Bauri, the informant has deposed that a mob consisting of several persons including the appellants (naming them specifically) variously armed with lethal weapons such as axe, lathi, bow and arrow came to Bauripara in village Dhasania and they uttered to assault the member of the Bauri Communities so that they leave the said village. He has further deposed that all the members of the Bauri communities fled away from there and took shelter in the Bengalipara which is situated in the northern portion of the said village. He has deposed to have seen the said mob causing damage to the houses of the Bauri communities and setting fire to the house of Sridhar Bauri and Ratan Bauri. He has also deposed that appellants Sarkar Murmu had set fire in the house of Sridhar Bauri and Ratan Bauri and those houses were completely burnt. His evidence is further to the effect that there was a police force stationed in the village but the said police force could be of no avail in preventing the riot caused by the said unlawful mob. In para 11 of his evidence he has specifically deposed that he has stated before the I.O. regarding appellant Sarkar Murmu setting fire in the house of Ratan Bauri and Sridhar Bauri but PW.11, the I.O. in the concluding portion of his evidence contradicts the said statement of PW.1 and has deposed that PW.1 Srinath Bauri had not disclosed the name of appellant Sarkar Murmu setting fire in the houses of Ratan Bauri and Sridhar Bauri. Therefore, the evidence of PW.1 regarding Sarkar Murmu having set the houses of Ratan Bauri and Sridhar Bauri on fire is fit to be brushed aside. PW.3 in his evidence on oath has named all the appellants as the member of the unlawful assembly armed with bow, arrow, lathi and axe and they have destroyed the houses of Bauri communities. Therefore, the evidence of PW.1 regarding Sarkar Murmu having set the houses of Ratan Bauri and Sridhar Bauri on fire is fit to be brushed aside. PW.3 in his evidence on oath has named all the appellants as the member of the unlawful assembly armed with bow, arrow, lathi and axe and they have destroyed the houses of Bauri communities. In para 3 of his evidence has specifically deposed that appellant Sarkar Murmu had set fire in the house of Sridhar Bauri whereas appellant Mansa Hembrom had set fire in his house as a result of which both the houses have been completely burnt. In para 6 of his cross examination he has deposed that all the appellants being the members of the unlawful assembly along with others have caused extensive damage to the house of the Bauri community by "Gaita" and "Spade". PW.9 Saju Bauri has named all the appellants expect Hopa Tudu as members of the unlawful assembly variously armed with axe, farsa, bhala, bow and arrow and the said unlawful mob was uttering to commit the murder of the members of the Bauri community and out of fear all the members of the Bauri community including him fled away from Bauritola and stayed at some distance from Bauritola. He has further deposed that the said unlawful mob set fire in the houses of Ratan Bauri and Sridhar Bauri and their houses were completely burnt. In para 6 of his cross examination he has deposed that the said unlawful assembly was consisting of the persons of the Santhal community and 100-150 persons had formed the said unlawful assembly and they were beating the drums. It, therefore, appears from the evidence of P.W.4, PW.3 and PW.9 read with the evidence of PW.1, the informant that an unlawful assembly with an unlawful object consisting of the appellants and a large number of persons came in Bauritola of the village to oust the members of the Bauri community from their village and they were variously armed with lethal weapons and the said unlawful assembly has caused destruction to the houses of the members of the Bauri community and appellant Sarkar Murmu and Mansa Hembrom have set fire in the house of Sridhar Bauri and Ratan Bauri, respectively. It further appears from their evidence that the aforesaid four witnesses have also identified the appellants as the participants in the occurrence being the members of the said unlawful assembly with an unlawful object. Nothing material has been elicited in their evidence to discredit their testimony. Other witnesses such as P.W.6, P.W.7 and P.W.8 in their evidence on oath have also stated regarding the occurrence which had taken place in Bauripara of village Dhasania in which some of the houses were burnt and other houses of the Bauri communities were damaged. P.W.1, the informant in para 5 of his evidence and P.W.9 in para 8 of his evidence has deposed regarding the genesis of the occurrence in question which is to the effect that there had been a quarrel between the members of the Bauri community and appellant Sarkar Murmu, Mansa Hembrom and Baijun Tudu in respect of picking up of Mahua fruits from the Kosaidih jungle a week prior to the occurrence and they had threatened the m!3mbers of the Bauri community that they shall be ousted from their village. Nothing material has been elicited in the cross-examination of P.W.4, P.W.3, P.W.9 and P.W. 1 to discredit their testimony as an ocular witness of the occurrence, identifying the appellants as a member of the unlawful assembly, having overt act in furtherance of their common object. The non-examination of the members of the police force cannot be viewed as an infirmity of the prosecution case and no adverse inference can be drawn in respect thereof. I, therefore, see ring of truth in their evidence. The learned court below has meticulously considered the evidence on the record in proper perspective and has rightly come to the finding of the guilt of the appellants. I, therefore see no infirmity or any illegality in the impugned judgment requiring an interference therein. 10. While parting it is made clear that in operative portion of the judgment name of appellant Som Murmu has been mentioned whereas in para 32 of the impugned judgment his name does not appear therein. Name of Soma Tudu appears in para 32 but in the operative portion of the impugned judgment name of Soma Tudu does not appear. This appears to be typographical error. Name of Soma Tudu appears in para 32 but in the operative portion of the impugned judgment name of Soma Tudu does not appear. This appears to be typographical error. It is also made clear that Som Murmu has neither been charge-sheeted in this case nor charge has been "framed against him and he has also not been put on trial. Name of Som Murmu also does not appear in the first page of the impugned judgment. However, Som Murmu figures as an appellant in this case for the reasons that his name does find place in the operative portion of the impugned judgment. If Som Murmu has furnished his bail bond in pursuance of the order dated 23.10.1990 of this court then in that case he shall be deemed to have been discharged from the liability of his bail bond. 11. There is no merit in this appeal and it fails. The appeal is hereby dismissed. The bail bond of all the appellants except Som Murmu are hereby cancelled and they are directed to surrender before the learned court below to serve out the sentence. The learned court below is also directed to take all coercive steps to apprehend the appellants except Som Murmu for serving out their sentence.