Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 815 (JHR)

Budhan Ganjhu v. State of Jharkhand

2009-05-21

N.N.TIWARI, PRASHANT KUMAR

body2009
Judgment By Court.-These two appeals arise out of the common judgment of learned trial court in S.T. No. 519 of 1999. whereby the appellants of the two appeals have been convicted and sentenced to undergo life imprisonment under Section 302 of the Indian Penal Code and directed to pay a fine of Rs. 10,000/- each and on default to undergo six months imprisonment under Section 17(i)(ii) of the Criminal Law Amendment Act. They have been further convicted under Sections 147 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and three years respectively. 2. The said two appeals were heard together and are being disposed of by this judgment. 3. The case was initiated on the basis of the fardbeyan of Chandra Ganjhu. 4. The prosecution case, according to the fardbeyan, is as follows:- (1) On 21.7.1995 the informant was ploughing his field alongwith Parmeshwar Ganjhu (deceased), Nemdhari Ganjhu and Akal Ganjhu. (ii) All of a sudden 15-16 persons armed with gun arrived there and asked them to come out of the field and assembled at one place. When the informant and others went there, the accused persons tied their hands at the back side and took them to a Mahua tree near Piprahi Tanr Budhan muttered that Parmeshwar (brother-in-law) of the informant is equal to ten persons and exhorted to kill him. Thereafter Budhan Ganjhu inflicted tangi blows on the neck and abdomen of Parmeshwar Ganjhu causing him serious injuries. Parmeshwar fell down on the ground. Thereupon other accused persons rained lathi blows on him, causing severe injuries, Parmeshwar succumbed to the injuries and died. The accused persons, thereafter, assaulted Nemdhari Ganjhu (P.W. 4) and Akal Ganjhu (P.W. 1). The accused persons, then untied their hands and released them and directed to leave the place. The reason of the occurrence is said to be land dispute. 5. On the basis of the said fardbeyan the Police registered a case under Sections 147, 148, 149, 302 I.P.C. and Section 27 of the Arms Act and took up investigation. On conclusion of investigation, charge-sheet was submitted against the accused persons, who are the appellants in these two appeals. Cognizance was taken and the case was committed to the Court of Sessions. 6. Charges were framed against the appellants under Sections 147, 148, 149, 302 I.P.C. and Section 27 of the Arms Act. On conclusion of investigation, charge-sheet was submitted against the accused persons, who are the appellants in these two appeals. Cognizance was taken and the case was committed to the Court of Sessions. 6. Charges were framed against the appellants under Sections 147, 148, 149, 302 I.P.C. and Section 27 of the Arms Act. The accused-appellants denied the charges and claimed to be tried. According to them, they were falsely implicated due to enmity and land dispute. 7. In order to establish the charges against the accused-appellants, the prosecution examined as many as seven witnesses. P.W. 1 Akal. Ganjhu is the person who is said to be injured and the eyewitness. However, in the dock he denied to have seen the occurrence and was declared hostile. It is relevant to mention that this witness happens to be the maternal uncle of the informant. Another prosecution witness Dr. Nityanand Mandai who has been also numbered as P.W. 1, and hereinafter referred to as P.W. 1/1 by us, is said to conducted post mortem on the dead body of the deceased Parmeshwar Ganjhu. P.W. 2 Dani Devi is the wife of the deceased. She is not an eye-witness to the occurrence. P.W. 3 Ramdeo Ganjhu is a co-villager and an independent witness. He is said to have seen the occurrence from the nearby field where he was ploughing his land. P.W. 4 Nemdhari Ganjhu is the brother of the informant and said to be injured in the occurrence. P.W. 5 Chandra Ganjhu is the informant P.W. 6 Indradeb Singh is the Investigating Officer. 8. The defence also examined four witnesses to prove the land litigation and enmity between the parties. 9. Learned trial court, on conclusion of the trial, held Budhan Ganjhu (appellant of Cr. Appeal No. 635/2003) guilty of committing offence under Sections 302, 147, 148 of the Indian Penal Code and all the appellants of Cr. Appeal No. 487/2003 namely Puran Yadav, Talo Yadav, Lukan Yadav and Bhekhlal Yadav were held guilty of committing offence under Sections 302/ 149 of the Indian Penal Code. One accused Nanku Yadav was, however, acquitted of all the charges. Learned trial Court also found all the appellants in both the appeals guilty" of the offences under Section 17(i)(ii) of the Criminal Law Amendment Act. 10. One accused Nanku Yadav was, however, acquitted of all the charges. Learned trial Court also found all the appellants in both the appeals guilty" of the offences under Section 17(i)(ii) of the Criminal Law Amendment Act. 10. In these two appeals the appellants have taken almost common grounds as under:- (i) The F.I.R., which is the foundation of the case, itself is doubtful. According to P.W. 5 (informant), an information was given by him to the Police Station at 9:00 A.M. which was recorded. He had put his L.T.I. on the statement. The another version of the prosecution as also that of P.W. 6 (I.O.) is that the fardbeyan was recorded at 16:45 hours at Village-Aara Dewaria i.e. the village where the occurrence alleged to have taken place. (ii) There are contradiction in prosecution evidence regarding the place of occurrence. (iii) Inquest report of the dead body was not prepared by the I.O. The same is not on record. (iv) The doctor is said to have held post mortem on the dead body of Parmeshwar Ganjhu. The doctor has stated that he had received the dead body of the deceased Parmeshwar Ganjhu at about 10:00 P.M. on 21.7.1995 (in his examination-in-chief), whereas the Investigating Officer (P.W. 6) has stated that on 21.7.1995 after recording fardbeyan at about 4:45 P.M. he could not visit the place of occurrence and returned to the Police Station and on the next day i.e. 22.7.1995 at about 5:00 A.M. he visited the place of occurrence and saw the dead body, thereafter he sent the dead body for post mortem. (v) P.W. 1, who is the own maternal uncle and said to be present at the time of occurrence and said to be assaulted by the accused persons and sustained injuries, has not supported the prosecution version. (vi) There was no proper examination of the accused persons under Section 313 Cr.P.C. 11. Mr. T.R. Bajaj, learned Senior Counsel appearing in Cr. Appeal No. 487 of 2003 additionally urged as follows:- (i) The appellants of this appeal were not named in the F.I.R. Their names have been said to be taken by the informant in re-examination on the next day. Learned trial court has accepted the said re-examination as a substantive piece of evidence and used the same in convicting these appellants. Appeal No. 487 of 2003 additionally urged as follows:- (i) The appellants of this appeal were not named in the F.I.R. Their names have been said to be taken by the informant in re-examination on the next day. Learned trial court has accepted the said re-examination as a substantive piece of evidence and used the same in convicting these appellants. (ii) There is no allegation whatsoever of any assault by these persons on the deceased Parmeshwar Ganjhu. The appellants are said to have assaulted P.Ws. 1 and 4 With lathi, but there is no injury report. P.W. 4 has stated that injuries on their persons were not medically examined. The appellants are the co-villagers, but they were not identified at the first instance and their names were not given by the informant. (iii) In the fardbeyan the informant has stated and has corroborated in his examination-in-chief as P.W. 5 that the assailants were young, but the age of all the appellants are 60-70 years. (iv) P.W. 3 who is a co-villager and an independent witness, has not named these appellants. (v) All other witnesses are inimical and interested. (vi) There is no evidence of any assault by these appellants. 12. Mr. Bajaj further submitted that these appellants are the residents of neighbourhood and co-villagers and were well known to the informant, but the informant did not name these appellants in the first instance in the fardbeyan. Their names were included in the re-statement of the informant. There is no explanation for the said omission. Their inclusion is deliberate and gives rise to serious doubts. Learned counsel referred to the decision of the Supreme Court in Mallana & Ors. vs. State of Karnataka [ (2007)8 SCC 523 ] wherein it has been held that if the accused persons are not named in the F.I.R., although they were known to the informant, for which no explanation was furnished, the accused are entitled to the benefit of doubt and that is a good ground for acquittal of the accused persons. It has been contended that the facts emerging from the evidences on record go to show that this is a model case of concoction and false implication of the accused appellant deliberately framed due to enmity and land dispute. There is no legal evidence to prove the charges against the appellants yet. They have been erroneously held guilty by learned trial court. There is no legal evidence to prove the charges against the appellants yet. They have been erroneously held guilty by learned trial court. The impugned judgment is wholly perverse and unsustainable. 13. Learned A.P.P., on the other hand, supported the impugned judgment on the ground that the contradictions here and there in the prosecution evidences are insignificant. P.W. 2-the wife of the deceased is an eye witness. P.W. 4 and the informant-P.W. 5 have fully supported the prosecution case. Though it is a fact that the names of the appellants of Cr. later stage, the Police on investigation found sufficient material against them as well. The prosecution has been able to prove the charges against the appellants and the court below has rightly came to the conclusion for convicting the appellants. There is no illegality/infirmity in the impugned judgment. 14. Though learned A.P.P. supported the impugned judgment, hi. could not explain the contradictions regarding post mortem, place of occurrence, manner of assault and the time and place of lodging of the F.I.R. 15. Having heard learned counsel for the appellants and learned A.P.P. we scrutinized the evidence and material on record. 16. Akal Ganjhu is the maternal uncle of the informant. In the fardbeyan he was said to be present at the time of occurrence and sustained injuries on being assaulted by some of the appellants. He was examined as P.W. 1 in the court, but he did not support the prosecution case. He was declared hostile. 17. Dani Devi (P.W. 2) is the wife of the deceased. She was not named as a witness in the fardbeyan. However, she was produced by the prosecution as an eye-witness but she clearly stated in her deposition that at the time of occurrence she was at home which is 1 K.M. away from the place of occurrence. She set out to go to the place of occurrence, but the way was through forest and out of fear she could not cross the forest. She has stated that her statement was not taken earlier by anybody. 18. P.W. 3 is a co-villager. He has stated that while he was ploughing his land on that day, he saw 15-16 persons including Budhan Ganjhu taking away Chandra Ganjhu, Nemdhari, Akal Ganjhu and Parmeshwar Ganjhu with their hands tied backward towards west. Thereafter, he could not see anything. 18. P.W. 3 is a co-villager. He has stated that while he was ploughing his land on that day, he saw 15-16 persons including Budhan Ganjhu taking away Chandra Ganjhu, Nemdhari, Akal Ganjhu and Parmeshwar Ganjhu with their hands tied backward towards west. Thereafter, he could not see anything. Learned counsel appearing on behalf of Budhan Ganjhu submitted that there was land dispute between the father of P.W. 3 and the appellant, as would be evident from his statement under Section 313 Cr.P.C. That was the reason for implicating the appellant by taking his name. 19. P.W. 4-Nemdhari Ganjhu tried to support the prosecution case and projected himself as an injured witness, but he has admitted that he had not consulted any doctor and had not taken any treatment of the injuries. This witness is the brother of the informant and is an interested witness, He has also admitted the land dispute and enmity between the informant and the appellants. 20. P.W. 5 Chandra Ganjhu is the informant. He has tried to support the prosecution version. In his examination-in-chief he has stated that after the occurrence, which according to him took place at about 8:00 A.M., he came home and thereafter about 9 O'clock he went to the Police Station and gave his statement and put his L.T.I. It is relevant to mention here that the statement has not been brought on report. The case was initiated on the basis of the fardbeyan lodged at village at 4:45 P.M. on 21.7.1995, whereas this witness has clearly stated that he has given information in the Police Station at 9:00 A.M., his statement was recorded and he also put the L.T.I. 21. We find substance in the submissions made by learned counsel for the appellants that the statement taken at 9:00 A.M. at the police station was the first information, but the same has been withheld by the prosecution. The prosecution is based on the fardbeyan of P.W. 5 recorded at 4:45 P.M. in the informant's village. Withholding of the first version of the occurrence gives rise to serious doubt in the veracity of the prosecution case and renders the entire proceeding vitiated. This witness further stated that all the miscreants were young persons. Admittedly none of the appellants is young. The appellants in Cr. Appeal No. 487/2003 are all between the age of 60-70 years and the appellant of Cr. This witness further stated that all the miscreants were young persons. Admittedly none of the appellants is young. The appellants in Cr. Appeal No. 487/2003 are all between the age of 60-70 years and the appellant of Cr. Appeal No. 635/2003 of 55 years on the date of the impugned judgment. 22. P.W. 6 (Investigating Officer) in his evidence has given contradictory statements giving rise to serious doubts. In his examination-in-chief he has stated that he heard rum our about the occurrence and proceeded to Village-Aara, Dewaria and reached there at 4:45 P.M. There he took statement of the informant Chandra Ganjhu (P.W. 5) thereafter he sent the dead body for post mortem to the hospital. In the cross-examination he has stated that on 21.7.1995 after recording fardbeyan at 16:45 hours, at Village-Aara he returned to the Police Station. He could not visit the place of occurrence because of setting of night. The next day i.e. 22.7.1995 at 5:00 A.M. he went to the village and inspected the place of occurrence took restatement of the informant and on that day he saw the dead body of Parmeshwar Ganjhu. He, however, has stated that he has mentioned about the dead body in his case diary. He has also stated that in the re-statement Chandra Ganjhu had said that all the miscreants were young persons. He is silent on preparation of any inquest of the dead body. In his further statement he has stated that he could not recover any incriminating axe, lathi, etc. He could not get any incriminating article on search of the house of the appellants. He has further stated that at the place of occurrence he had found sign of some drops of blood. But he did not seize any blood or blood stained earth. 23. The I.O. is silent regarding the inquest of the dead body. Inquest report has not been produced. The I.O. has said at one place that he had seen the dead body also on the next day while the other evidence and the evidence of I.O. at the another place contradicted the said version by the statements that the dead body was sent for post mortem at 10:00 P.M. on the previous day i.e. on 21.7.2005. 24. Furthermore, names of four appellants of Cr. Appeal No. 487 of 2003 were not given by the informant, who are co-villagers. 24. Furthermore, names of four appellants of Cr. Appeal No. 487 of 2003 were not given by the informant, who are co-villagers. In the case of Mallana & Ors. (supra) the Apex Court extended benefit of doubt only on the ground that the persons known from before, were not named in the F.I.R. 25. There is no injury report of the alleged injury sustained by P.Ws. 1 and 4. 26. None of the prosecution witnesses has said about any assault on Parmeshwar Ganjhu by the four appellants of Cr. Appeal No. 487 of 2003. 27. There is admitted land dispute and enmity between the parties and no independent witnesses has come forward to support the prosecution version. 28. According to the prosecution all the miscreants were young persons. But the appellants are of advanced age. 29. P.W. 3 is said to be an independent witness but he has not supported the prosecution version. 30. The appellants suggested that the area is naxal infected. The extremists used to visit the village. Parmeshwar Ganjhu became their victim. After killing him, his dead body was thrown in the village. The appellants were, thereafter, implicated due to previous enmity. 31. In any view, we do not find any legal basis for the finding of learned trial court holding the appellants guilty of the aforesaid charges. 32. For the reasons aforesaid, we allow these criminal appeals. The appellants are acquitted of the charges levelled against them. The judgment of conviction and the order of sentence dated 31.3.2003 passed against the appellant by Shri Sandeep Sharma, learned Additional Sessions Judge, F.T.C.-III, Chatra In Sessions Trial No. 519/1999 are set aside. The appellant Budhan Ganjhu (Cr. A. No. 635/2003), who is said to be in custody is ordered to be set at liberty forthwith, If not wanted in any other case. Since the appellants of Cr. A. No. 487/2003 are said to be on bail, they are discharged from the liabilities of their respective bail bonds.