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2009 DIGILAW 409 (JHR)

Ramdeo Singh v. State of Bihar

2009-03-20

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court.— This appeal has been preferred by the appellants against the judgment of conviction dated 30th January, 1996 and order of sentence dated 31st January, 1996, passed by Sri P. Kumar, Additional Sessions Judge, Gumla in S.T. No. 75 of 1995. 2. Six accused persons, including these three appellants, were charged for committing offence under Section 302 read with Section 34 of the Indian Penal Code for killing of Bhikha Asur and also charged for the offence under Section 201 read with Section 34 of the Indian Penal Code for concealing the evidence i.e., dead body of the deceased. 3. On conclusion of the trial, learned Trial Court acquitted three accused persons, while found the appellants guilty for committing the offences under Sections 302/34 and 201/34 of the Indian Penal Code and convicted them. The appellants have been entenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and rigorous imprisonment for six years under Section 201/34 of the Indian Penal Code. 4. The prosecution has been launched on the basis of the fardbeyan of Barsa Asur-P.W. 8 dated 31st October, 1994. 5. The prosecution case, in brief, is that on 27th October, 1994, the informant's father, Bhikha Asur, had gone to Chainpur Hat, but he did not come back. The next day, his brother, Ajit Asur, on the way to his school, saw a blood stain CHAPPAL and LATHI lying in the field of Sanu Munda (P.W. 6). On his information, the informant and others started searching, but they could not find the deceased. Thereafter, the informant went to enquire from Sanu Munda from whose field the said articles were found. It is alleged that Sanu Munda disclosed that he had seen his father returning from Hat alongwith the appellants. Thereupon, the informant with the help of other co-villagers, namely, Devanand Asur, Rupan Oraon, Madhwa Asur and Maghe Asur and others caught hold of the accused-appellant Ramdeo Singh and enquired about the whereabouts of his father Ramdeo Singh allegedly confessed in presence of the said villagers that he alongwith other five accused persons convened a meeting and decided to finish his father and in furtherance thereof, accused-appellants Ramdeo Singh, Jayalal Oraon and Mangal Oraon, followed the deceased while the deceased was returning from market. When the deceased reached near Primary School of the village, the appellants attacked the deceased and gave repeated Lathi blows. When the deceased fell down, the appellants crushed his head with stone, causing death of the deceased. Then the appellants took the dead body of the deceased to the Jungle. 6. On the basis of the said fardbeyan, police had registered the case and after conclusion of investigation, police submitted charge-sheet against six persons, as aforesaid, for the said offences. 7. Charges under Sections 302/34 I.P.C. and 201/34 I.P.C. were framed against the accused-appellants. The appellants denied the charges and claimed to be tried. They were put on trial. On their examination under Section 313 Cr.P.C., they denied to have committed any offence. 8. The prosecution in order to prove the said charges against the appellants has altogether examined 14 witnesses. P.W.1-Saitu Asur, P.W.2-Sornra Asur. P.W. 3-Devanand Asur, P.W. 4-Ram Asur. P.W. S-Madhwa Asur and P.W.6-Sanu Munda are co-villagers. They were produced by the prosecution, but did not support the prosecution case and were declared hostile. Amongst them. P.W.6-Sanu Munda is said to have disclosed the fact of last seen to the informant's brother, Ajit Asur (P.W. 9). Sanu Munda has not supported the said version of the prosecution. P.W.7-Rupan Oraon is a witness to the inquest. He has neither seen the occurrence nor has stated anything further. P.W. 8-Basa Asur is the informant. He is also not a witness to the occurrence. His statement is based on the information given by P.W. 9-Ajit Asur and P.W. 6-Sanu Munda, who is also not a witness of the occurrence. P.W. 9-Ajit Asur is the son of the deceased. He has only stated about the blood stained CHAPPAL and LATHI in the field of Sanu Munda. He is also not a witness of the occurrence. P.W. 10-Shanti Devi is the widow of the deceased. She is also not a witness of the occurrence. She has stated about the confession made by accused-appellant Ramdeo Singh, P.W.11-Naipi Kumari Kerketta is the daughter of the deceased. She has stated that while going to Hat, her father was bearing a CHAP PAL, which belongs to her father. She is also not a witness of the occurrence. P.W. 12-0r. Mrityunjay Sarawgi had conducted autopsy on the dead body of the deceased Bhikha Asur. He has found several injuries; out of which Injury Nos. She has stated that while going to Hat, her father was bearing a CHAP PAL, which belongs to her father. She is also not a witness of the occurrence. P.W. 12-0r. Mrityunjay Sarawgi had conducted autopsy on the dead body of the deceased Bhikha Asur. He has found several injuries; out of which Injury Nos. 3 to 8 are incised injuries caused by sharp cutting weapon. P.W. 13-Lodhma Murmu is the Investigating Officer. He has proved the inquest report, seizure report and some other statements made before him by the witnesses. He has also stated about the recovery of dead body from a bush, nearby the field of Sanu Munda. 9. Learned Trial Court on conclusion of the trial acquitted three accused persons and found these appellants guilty of the aforesaid charges and convicted and sentenced them, as aforesaid. Learned Trial Court heavily relied on the oral testimony of P.Ws. 8, 9, 10, 11 and 13 coupled with medical evidence of P.W. 12 and has held the said charges established against the appellants. 10. Learned Trial Court held that the evidences •on record make a complete chain of the circumstances pointing out and establishing the guilt of the appellants, as they were last seen by Sanu Munda and were following him. The accused-appellant Ramdeo Singh confessed his guilt in presence of the villagers Madhwa Asur and Saitu Asur and others and at his instance dead body of the deceased was recovered from Hathi Deepa Garha. While the chain of circumstance is not completed against the accused Etwa Asur, Jarku Asur and Sanicharwa Asur, they were entitled to the benefit of doubts and were acquitted of the charges. 11. Mr. A.S. Dayal, learned counsel for the appellants have assailed the impugned judgment of conviction and order of sentence of court below and submitted that admittedly neither there is eye witness of the incident nor there is circumstantial evidence nor worthy of credence to hold the appellants guilty of the charges. The very case of the prosecution is doubtful. The date of occurrence is said to be 26th/27th October, 1994. P.W. 9- Ajit Asur had stated that CHAP PAL and LATHI belonging to his father was seen abandoned in the field on 27th October, 1994. The very case of the prosecution is doubtful. The date of occurrence is said to be 26th/27th October, 1994. P.W. 9- Ajit Asur had stated that CHAP PAL and LATHI belonging to his father was seen abandoned in the field on 27th October, 1994. But there is no report to the police even thereafter and the fardbeyan was recorded when the police after about four days visited the village on 31st October, 1994. There is no explanation for inordinate delay in giving report to the police. Learned counsel submitted that the learned Trial Court has based its finding on the confessional statement of Ramdeo Singh, leading to recovery of the dead body, but neither confession nor recovery of the dead body has been proved by the prosecution. The confession was alleged to be made by the accused-appellant Ramdeo Singh in presence of the villagers Saitu Asur, Madhwa Asur and Maghe Asur. Saitu Asur had been examined as P.W. 1, but he had not supported the prosecution version and had been declared hostile. Another villager Madhwa Asur has been examined as P.W. 5 and he had also not supported the prosecution version and had been declared hostile, Maghe Asur had been withheld by the prosecution and he had not been produced. The adverse inference under law has to be drawn for non-production of the said witness. It would be evident from the statements of the informant (P.W.8) that accused-appellant Ramdeo Singh had confessed, when he was arrested by the police, in presence of the Investigating Officer. The Investigating Officer had not corroborated the prosecution version that at the instance of or on the basis of the confessional statement of Ramdeo Singh, he recovered the dead body of the deceased Bhikha Asur. The alleged confession is, therefore, inadmissible in evidence. Another evidence, which has been relied upon by the learned Trial Court is of last seen by P.W.6-Sanu Munda. Sanu Munda was produced, but he has not supported the prosecution version that he had seen these accused persons following the deceased on the fateful day. Learned counsel further submitted that specific version of the prosecution is that the deceased Bhikha Asur died due to injury caused with Lathi by the accused persons. P.W.12-Dr. Mrityunjay Sarawgi held the post mortem on the dead body of the deceased and found as many as five grievous incised injuries on the person of the deceased. Learned counsel further submitted that specific version of the prosecution is that the deceased Bhikha Asur died due to injury caused with Lathi by the accused persons. P.W.12-Dr. Mrityunjay Sarawgi held the post mortem on the dead body of the deceased and found as many as five grievous incised injuries on the person of the deceased. He had specifically stated that Injury Nos. 3 to 8 cannot be caused by Lathi. The prosecution allegation that the injuries were caused by these persons with Lathi is, thus, falsified by the said medical evidence. Learned Trial Court has erroneously used the said circumstances, which were not proved, and has committed error of record in holding that the dead body of the deceased was recovered by the Investigating Officer on the basis of the confessional statement of accused appellant Ramdeo Singh. The said facts and circumstances have been used against the appellants in holding them guilty, but the same were not put to the accused-appellants in their examination under Section 313 Cr.P.C. The said facts and circumstances, thus, cannot be used against the appellants as well for holding them guilty. On the basis of same evidences, three accused persons have been given benefit of doubt and they have been rightly acquitted. Learned counsel submitted that this is a case of no evidence and learned Trial Court has committed serious error of law as well as of the fact in convicting and sentencing the appellants. 12. Learned A.P.P., on the other-hand, has tried to support the impugned judgment and submitted that though there are contradictions in oral testimony of the prosecution witness, but on that basis the whole testimony cannot be discarded. It is evident from the evidences of P.Ws.8, 9, 10, 11 and 13 (Investigating Officer) that the informant's father Bhikha Asur had gone to Chainpur Hat and he was assaulted by the appellants in furtherance of their common intention on the basis of last meeting with other three accused persons, causing his death. There is positive confessional statement leading to recovery, yet this has come in the Evidence of P.W.8 that accused-appellant Ramdeo Singh had confessed before the co-villagers about assaulting and finishing of Bhikha Asur and concealing his dead body, which was subsequently recovered by the Investigating Officer. Thus, the appellants have been rightly convicted and sentenced by the learned Trial Court. 13. Thus, the appellants have been rightly convicted and sentenced by the learned Trial Court. 13. Having heard learned counsel for the appellants and learned A.P.P. we have ourselves appraised the evidences on record. We find that P.W.6-Sanu Munda, who is said to have last seen the informant's father following by the appellants, in his examination he has not supported the prosecution version. Last seen story has, thus, not been proved by the competent witness. Though P.W. 8-Barsa Asur-informant, P.W. 9-Ajit Asur, son of the deceased and his widow (P.W.10) and daughter (P.W. 11) suspected the said story of last -seen disclosed by P.W.6-Sanu Munda, but their evidences are hearsay, not supported and corroborated by any positive and direct evidence. 14. On close reading of the deposition of P.W. 13-lnvestigating Officer, we do not find any such statement that the recovery of the dead body was led by confession of accused-appellant Ramdeo Singh. From the evidence of P.W.8, it is evident that the said confession was allegedly made by Ramdeo Singh while he was taken into custody by the police and in presence of the Investigating Officer. That confessional statement, as such, is also not admissible and the same cannot be relied upon. We do not find any ocular evidence, making out a link to complete the chain of circumstantial evidence. On the contrary the medical evidence has contradicted the said ocular evidence as also the prosecution case. P.W. 12, the doctor, who has conducted autopsy on the dead body, found several incised injuries and he has given specific opinion that Injury Nos.3 to 8 cannot be caused by Lathi. The manner of occurrence alleged by the prosecution has not been proved. Learned Trial Court has used the said confession, leading to recovery, as strong circumstance for convicting and sentencing the appellants. But on perusal of the statements of the accused-appellant under Section 313 Cr.P.C., we find no such facts and circumstances were put to the accused-appellants. 15. It is well settled that any fact or circumstance, which is not disclosed and put - to the accused in his examination under Section 313 Cr.P.C., cannot be used as the basis of the conviction. 16. In view of the above, we find no legal basis and any admissible evidence on record to hold the appellants guilty of the aforesaid charges. 17. 16. In view of the above, we find no legal basis and any admissible evidence on record to hold the appellants guilty of the aforesaid charges. 17. In result, we allow this appeal and set aside the conviction and order of sentence of the appellants and impugned judgment of the learned Trial Court in S.T. No. 78 of 1995. Accordingly, the appellants are acquitted of the charges. The Appellant No.1, who is in custody, shall be released forthwith, if not wanted in any other case. Since the Appellant Nos. 2 and 3 are on bail, they are discharged from the liabilities of their respective bail bonds.