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2011 DIGILAW 297 (JHR)

Munu Mahto v. State of Jharkhand

2011-03-31

D.K.SINHA

body2011
Judgment : D.K. Sinha, J.- Petitioners have invoked the inherent jurisdiction of this Court under Section 482 Code of Criminal Procedure for quashment of the order dated 10.7.2007, passed by the learned Additional Sessions Judge, FTC.-II, Daltonganj in ST. No. 192A/2006, by which summons was directed to be issued against the petitioners under Section 319 of the Code of Criminal Procedure for facing the trial. The petitioners further requested for the quashment of their criminal proceedings in S.T. No. 192A/2006. 2. Prosecution story in short was that the informant-Rajendra Bhuian in his written report stated that his younger brother Yugal Bhuian (since deceased) had proceeded on 15.9.2005 to participate in Karma Puja Mela at about 4 O'clock in the evening. When he did not return back in the night, the informant became anxious. In the morning of 16.9.2005, he was informed that the dead body of his younger brother Yugal Bhuian was lying in Loinga forest. He went there with the witnesses and other members of his family and identified the dead body of his younger brother Yugal Bhuian, which was lying about 50 ft. east from the house of one Kabir Mian. The head of the deceased was crushed probably with the stones and his hands were cuffed with the belt. There were other injuries on his body. Informant came to learn that the deceased had taken liquor in the house of Basant Ram on 15.9.2005 at Village-Loinga, where there held altercation with him, as such, the informant raised suspicion that on account of such altercation, Basant Ram had committed murder of his younger brother Yugal Bhuian with the help of unknown by assaulting him. The FI R was registered against the accused Basant Ram and unknown culprits. 3. The police after investigation, submitted charge-sheet only against Basant Ram against whom charge was framed under Sections 302/201 of the Indian Penal Code and was put on trial by the Sessions Court. During course of trial, nine witnesses were produced and examined on behalf of the prosecution, but the learned counsel Mr. Tewari submitted that none of them claimed to be the eye witness of the alleged occurrence, though almost all were the near relations of the deceased except P.W. 8 Dr. Jayant Lakra, who had held autopsy on the dead body and PW.9 Mani Lal Rana, the Investigating Officer of the case. 4. Mr. Tewari submitted that none of them claimed to be the eye witness of the alleged occurrence, though almost all were the near relations of the deceased except P.W. 8 Dr. Jayant Lakra, who had held autopsy on the dead body and PW.9 Mani Lal Rana, the Investigating Officer of the case. 4. Mr. Tewari, the learned counsel, pointed out that prosecution filed a petition before the Sessions Court on 13.6.2007 to issue summons against the petitioners under Section 319 of the Code of Criminal Procedure on the basis of prima facie material against them, appeared during course of the trial. The learned Additional Sessions Judge, F.T.C.-II, Daltonganj, Palamau, without appreciating that there was no legal evidence against the petitioners and that the charge-sheet was also not submitted against them, allowed the• petition of the prosecution and directed summons to be issued against the petitioners by splitting record of• the petitioners. The accused Basant Ram was convicted under Sections 302/201 of the Indian Penal Code without aid of Section 34 so it can well be inferred that none was held criminally liable for the charges except Basant Ram in commission of the murder of Yugal Bhuian. 5. Mr. Tewari further submitted that the prosecution witnesses made substantial development and improvement in their testimonies before the trial court. P .W. 1 Sohar Bhuian and P.W. 2 Sudama Bhuian had stated that the petitioners Munu Mahto, Jairam Mahto and Basant Ram, all the three, took away Yugal Bhuian (since deceased) at about 4:00 p.m. to visit Loinga fair and thereafter, Yugal Bhuian did .not return to home. The informant P.W. 3 Rajendra Bhuianin his examination-in-chief had implicated the petitioners that they came to his house alongwith Basant Ram and took away his younger brother Yugal Bhuian to visit Karma Fair in the Village Loinga, but this fact was never revealed by the informant at the first instance either in his written report or restatement before the police and in that manner, the informant made substantial development before the trial court, as such his testimony did not inspire confidence. 6. Finally Mr. Tewari submitted that the learned trial court ignored this aspect that these witnesses had made substantial development and have intentionally implicated the petitioners, who were not at all concerned with the alleged murder and there was no eye-witness to substantiate the complicity of the petitioners. 6. Finally Mr. Tewari submitted that the learned trial court ignored this aspect that these witnesses had made substantial development and have intentionally implicated the petitioners, who were not at all concerned with the alleged murder and there was no eye-witness to substantiate the complicity of the petitioners. The judgment recorded by the learned Additional, Sessions Judge, F.T.C.-II, Daltonganj in S.T. No. 192/2006 against the accused Basant Ram clearly indicated that he was held guilty alone. Though the charge-sheet was submitted under Sections 302/201/34 of the Indian Penal Code but the charge was framed only under Sections 302/201 of the Indian Penal Code against him and no question was put to him in his statement recorded under Section 313 of the Code of Criminal Procedure that he after sharing the common intention with other accused had committed murder. He was convicted under Sections 302/201 of the Indian Penal Code and sentenced to rigorous imprisonment for his life. 7. In Kailash vs. State of Rajasthan and Another, reported in 2008(2) Ea3t Cr.C. 275(SC) [: 2008(4) JLJR (SC)246], the learned Apex Court held, "A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this section are "it appears from the evidence"... "any person". .. "has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319,CrPC would be used by the Court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319,CrPC has to be exercised very sparingly and with caution and only when the concerned Court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the Court would have to be circumspect while exercising this power and would have to apply the caution which the language of the section demands." 8. Heard Mr. Md. Hatim, the learned A.P.P. on behalf of the State, submitted that the witnesses, referred to hereinbefore by the counsel for the petitioners, were the eye-witnesses, who have claimed having seen these petitioners taking away the deceased on the pretext of visiting Karma Fair and thereafter, the dead body of the deceased was recovered in the next morning, which created a strong circumstance against the petitioners to be arrayed in the case and on such supposition, the trial court issued summons to the petitioners under Section 319 of the Code of Criminal Procedure, which did not call for interference. 9. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties, I find substance in the arguments of the counsel for the petitioners that the prosecution witnesses viz. P.W. 1 and P.W. 2 including the informant P.W. 3 Rajendra Bhuian have made substantial development in their evidence before the trial court. The informant had occasions to disclose the complicity of the petitioners, if at al.1 they had taken away his younger brother to visit fair, either at the time of recording of his Fardbeyan or when his restatement was recorded by the Investigating Officer. Similarly, two other witnesses have also made substantial development in their evidence. There appears substance that the accused Basant Ram was charged under Sections 302/201 of the Indian Penal Code and he was convicted under those sections by awarding substantial sentence but without aid of Section 34 of the Indian Penal Code. In his statement recorded under Section 313 Code of Criminal Procedure, no question was put to him that he committed murder of Yugal Bhuian in furtherance of common intention with the other culprits. 10. In his statement recorded under Section 313 Code of Criminal Procedure, no question was put to him that he committed murder of Yugal Bhuian in furtherance of common intention with the other culprits. 10. For the reasons stated above and relying upon the decision of the Apex Court, referred to hereinabove, I find merit in the instant petition, accordingly, this petition is allowed and the petitioners, against whom summons have been issued under Section 319 of the Code of Criminal Procedure by impugned order dated 10.7.2007 is quashed.