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2012 DIGILAW 720 (PAT)

Upendra Mukhiya v. State of Bihar

2012-05-03

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT Per S.K. Sharma, J.- Upendra Mukhia, Hanuman Rajak, Jagdish Sah, Shibeshwar Rajak, Kuldeep Rajak, Domi Rajak, Kari Rajak, Upendra Sah and Bhukhan Sah have been convicted each under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. they have also been sentenced under Section 201 read with Section 149 of the Indian Penal Code and each of them sentenced to undergo rigorous imprisonment for seven years. They have been further convicted under Section 147 of the Indian Penal Code and each of them sentenced to undergo rigorous imprisonment for a period of two years. The accused namely Hanuman Rajak. Shiveshwar Rajak and Upendra Sah have been further convicted under Section 148 of the Indian Penal Code and each of them sentenced to undergo rigorous imprisonment for three years. All the sentences were directed to run concurrently vide judgment and order dated 8th of March, 1989 in Sessions Case No. 21 of 1981 passed by the learned Additional Sessions Judge Madhepura. Six persons namely Umesh Lal Das, Ramkisun Sah, Laxman @ Farenma, Leelanand Sah, Kokai Thakur and Subhak Mukhiya were also put on trial along with the present appellants but they were found not guilty and so they were acquitted. 2. Nobody was present to represent the appellants. Therefore, this Court had to appoint amicus curiae and with the assistance of learned amicus curiae the appeal has been heard and is being disposed of. 3 The appeal relates to an occurrence of 3rd July, 1980 i.e. about 32 years earlier. fard beyan (Ext.2) of Geeta Devi PW 15 wife of Ganeshi Sah (the deceased) was recorded on 03.07.1980 at 9.15 hours at Village Jhanjhri Pirnagar wherein she stated to the police that about preceding 6.00 a.m. her husband Ganeshi Sah had been to discharge his natural urge and for that he went north of the village, Sometime thereafter, a cry of saving was heard which appeared to be of her husband coming from the side of the house of Islam Babu (not examined). The informant along with her daughter rushed towards the house of Islam Babu and saw Hanuman Rajak, Domi Rajak. Kallua Rajak and Kari Rajak were catching hold, Jagdish and Upendra Mukhia tying a knot upon the neck of the informant's husband. Kisun Sah and Laman Sah struck though arrow which caused injury upon the right cheek. The informant along with her daughter rushed towards the house of Islam Babu and saw Hanuman Rajak, Domi Rajak. Kallua Rajak and Kari Rajak were catching hold, Jagdish and Upendra Mukhia tying a knot upon the neck of the informant's husband. Kisun Sah and Laman Sah struck though arrow which caused injury upon the right cheek. Sibeshwar Rajak was having double barrel pipe gun and he was whistling and shouting that Ganeshi Sah (the deceased) would be cut and he was also daring not to venture near Ganeshi Sah, Hanuman Rajak at that time was having a single barrel pipe gun. Bhusi Rajak, Subhuk Mukhia, Jageshwar Mukhia, Pokai Thakur, Bhuthan Sah. Upendra Sah and Lilanand Sah were having lathis in their hands. Upendra Sah was having garasa and some persons were having bow and arrow. The informant requested Islam Babu (not examined), Gafoor Babu (not examined), Aziz Babu (not examined) and Mazharul Haque (not examined) to save her husband. They tried to rescue but they were also threatened by the mob. Sibeshwar Rajak and Hanuman Rajak were putting pistol upon the persons who tried to intervene. The informant requested Jagdish Sah, Domi Rajak, Hanuman Rajak and Sibeshwar Rajak to spare her husband but Sibeshwar Rajak and Hanuman Rajak assaulted the informant with the butt of the gun and the informant's husband was dragged towards the houses of the accused. At the darwaja of Hanuman Rajak the informant's husband was assaulted with the butt of pipe gun, fists and slaps where he died. Her cry yielded no result. On hulla, chowkidar Amro Paswan PW 2 came and tried to rescue but he was threatened of being shot by Siweshwar Rajak, Muslim Ali, Mukhtar Nunu and Zainul Nunu went to the darwaja of Hanuman Rajak but they were also threatened. After the informant's husband fell down then Jagdish Sah arranged a gunny bag from his house and put the dead body which was carried upon the head of Bhukhan Sah. The informant's devar Bharosi Sah PW 8, Janardan Sah PW 4, Gyanchand Sah PW 10, Ramchandra Singh (not examined), Jhakar Singh (not examined), chowkidar Amro Paswan PW 12 and Tetar Paswan (not examined) were also threatened to shoot by the accused persons. The informant returned and the dead body was carried towards south of the village. The informant's devar Bharosi Sah PW 8, Janardan Sah PW 4, Gyanchand Sah PW 10, Ramchandra Singh (not examined), Jhakar Singh (not examined), chowkidar Amro Paswan PW 12 and Tetar Paswan (not examined) were also threatened to shoot by the accused persons. The informant returned and the dead body was carried towards south of the village. The informant was going to police station along with chowkidar Tetar Paswan (not examined) and her devar Janardan Sah PW 4. When she came to know that the police has gone to village Pirnagar then she returned and gave her fardbeyan. The occurrence was on account of the fact that one year earlier Adhiklal Sah was killed by Upendra Mukhia, Hanuman Rajak, Jagdish Sah, Shibeshwar Rajak, Kuldeep Rajak, Domi Rajak, Kari Rajak, Upendra Sah, Bhukhan Sah, Lilanand Sah and Laxman Sah @ Farenma for which the case was instituted and was pending in the Court. In that case the informant's husband was informant. While reiterating, the accused persons carried away wrist watch and pot of the informant's husband. The fardbeyan was witnessed by Janardan Sah and Islam Khan (none examined). The fardbeyan resulted into the formal First Information Report of Kishunganj P.S. Case No.2 (7)/80 under Sections 147, 148, 149, 302, 201 and 379 of the Indian Penal Code and the investigation started. In course of investigation, the inquest report (Ext.4) was prepared. Injury report of Geeta Devi (Ext.5) was obtained. The dead body said to be of Ganeshi Sah was recovered and the post-mortem was held. The post-mortem report (Ext.3) was obtained and places were examined. After completion of investigation, charge-sheet was submitted and the case being triable by the Court of Sessions was committed where the charges were explained to Hanuman Rajak, Kishun Sah, Laxman Sah @ Farenma, Sibehswar Rajak and Upendra Sah under Section 148 of the Indian Penal Code. Umesh Lal Das. Jagdish Sah and Bhukhan Sah were charged under Section 201 of the Indian Penal Code, Jagdish Sah, Upendra Mukhia, Upendra Sah, Hanuman Rajak, Sibeshwar Rajak, Domi Rajak, Kuldeep @ Kulwa Rajak and Kari Rajak were charged under Section 302 of the Indian Penal Code. Umesh Lal Das. Jagdish Sah and Bhukhan Sah were charged under Section 201 of the Indian Penal Code, Jagdish Sah, Upendra Mukhia, Upendra Sah, Hanuman Rajak, Sibeshwar Rajak, Domi Rajak, Kuldeep @ Kulwa Rajak and Kari Rajak were charged under Section 302 of the Indian Penal Code. Hanuman Rajak, Domi Rajak, Kuldeep @ Kulwa Rajak, Kari Rajak, Jagdish Sah, pendra Mukhia, Kishun Sah, Sibeshwar Rajak, Laxman Sah @ Farenma, Subhak Mukhia, Kokai Thakur, Bhukhan Sah, Upendra Sah, Lilanand Sah and Umesh Lal Das have charged under Section 302/149 of the IPC, 201/149 of the IPC, 147 of the IPC, and 379 of the IPC. The accused persons pleaded their innocence so the trial proceeded. 4. The defence of the accused persons is of false implication on account of previous enmity with the family of Ganeshi Sah (the deceased) who was a notorious criminal of the locality. He was desired in several cases and had many enemies and therefore all the possibilities were there that he might have been killed by some other criminals and after recovery of a dead body which was unidentified and a false charge-sheet was submitted. The defence has challenged that the recovered dead body was not of Ganeshi Sah. The defence has further relied upon deposition of Ganeshi Sah recorded on 9th day of July, 1969 (Ext. A) and the statements of one Subhuk Mukhia and Jago Sharma (Ext. B and B/l) 5. In order to prove the charge the prosecution has examined 16 witnesses they are PW 1 Lalan Kumar Jha, PW 2 Shyamdeo Sharma, PW 3 Dr. B.N. Mishra, PW 4 Janardan Sah. PW 5 Md. Sk. Zainul, PW 6 Sk. Muslim Ali, PW 7 Ram Chandra Singh, PW 8 Bharosi Sah, PW 9 Ram Lakhan Sah, PW 10 Gyanchand Sah, PW 11 Md. Abbas Dafadar, PW 12 Amro Paswan chowkidar, PW 13 Shyamdeo Sharma is the same as PW 2 and he has been examined twice, PW 14 Ganeshi Ram Raman, PW 15 the informant Geeta Devi and PW 16 Ramdeo Singh, PWs 1, 2, 13 and 16 are formal witnesses. PWs 11 and 12 are Dafadar and chowkidar respectively were declared hostile as they have not supported any part of the occurrence. PW 1 is an Advocate Clerk who has proved the writing of the formal First Information Report (Ext. 1). PWs 11 and 12 are Dafadar and chowkidar respectively were declared hostile as they have not supported any part of the occurrence. PW 1 is an Advocate Clerk who has proved the writing of the formal First Information Report (Ext. 1). PW 2 has identified the writing of fardbeyan of Shri Tuddo (Ext. 2). That very person PW 2 has been examined as PW 10 and in his second attempt he has identified the writing of injury of Geeta Devi (Ext. 5). PW 16 has identified writing of Shri Tuddo upon the case diary (Ext. 7) writing of the then S.P. on final PR (Ext. 8) and inquest report as (Ext. 6/1). 6. The informant PW 15 has stated in her evidence that her husband was killed on the date of occurrence. Her husband had been to discharge his natural urge and for that purpose he has gone north of the village. She heard a cry emanating from the side of residence of Islam Babu and the cry was for rescuing. After hearing that cry the informant went upon the darwaja of Islam Babu and saw all the above named 17 accused persons out of whom Shibeshwar Rajak was having pistol of two pipes. Hanuman Rajak was having pistol of one pipe, Laxman Sah @ Farenma was having bow and arrow, Lilanand Sah was having lathi, Upendra Mukhia, Upendra Sah and other persons were also having traditional weapons. Shibeshwar Rajak was whistling, Hanuman Rajak, Domi Rajak, Kari Rajak and Jagdish Sah were catching Ganeshi Sah (the deceased), Laxman Sah @ Farenma struck a blow of arrow to Ganeshi, Jagdish Sah and Upendra Mukhia allowed the informant's husband and when the informant tried to intervene and save her husband then she was returned. Ramchandra Singh, Islam Babu, Gafoor Babu, Aziz Babu, Zainul and Mazharul Haque etc. have also requested to spare but it was not followed. Sibeshwar Rajak assaulted the informant with the butt of a pipe gun which caused injury upon her right hand and back. The accused persons carried away the informant's husband upon the darwaja of Hanuman Rajak, Amro Paswan PW 12 also requested the accused persons to spare. The informant was assaulted by Hanuman Rajak and Sibeshwar Rajak. On account of assault at darwaja of Hanuman Rajak, the informant's husband died and the dead body was put in a gunny bag and carried away. The informant was assaulted by Hanuman Rajak and Sibeshwar Rajak. On account of assault at darwaja of Hanuman Rajak, the informant's husband died and the dead body was put in a gunny bag and carried away. 3-4 days after the occurrence, the dead body of the deceased was recovered from the field of Moong of Umesh which was identified by the informant. The informant has supported the factum of assault wherein she has named all the fifteen persons who were put on trial. She has attributed different roles to all the accused persons who were put on trial. Six persons were put on trial and they were acquitted. Regarding conduct of her husband she has stated that her husband has remained in custody for long period in connection with murder case. Not only that her husband was accused in a case of dacoity. She further stated that her husband was accused in other cases also. The motive given by her is that her father-in-law was killed one year prior to the occurrence and in that case the informant's husband was informant. After the accused persons were released then they had committed murder. Though, the informant has stated that other witnesses came after hearing her cry but before the trial Court the witnesses have claimed to be eye-witnesses. 7. PW 4 is brother of the deceased and he has supported the informant's version and has claimed to be a witness of the occurrence. Though, this witness has stated that the deceased's brother was not an accused of a case of dacoity in which he was a bailor but he has contradicted the version of the deceased's wife wherein she has stated that her husband was accused in a case of dacoity also. A suggestion was given to him as to whether body was recovered was of his brother or not then he has replied in affirmative. PW 5 is another witness who has supported the informant's version of assault but he has made departure from his earlier version when he deposed in para-7 of his evidence that he came to know about the occurrence through wife of the informant. Therefore, this witness is not a witness of the occurrence rather he is a hearsay witness. PW 6 has not identified Upendra Mukhia and Umesh Lal Das in the dock. Therefore, this witness is not a witness of the occurrence rather he is a hearsay witness. PW 6 has not identified Upendra Mukhia and Umesh Lal Das in the dock. The evidence of the informant is that the watch of Ganeshi Sah was snatched but in para-22, PW 6 has denied this version and has stated that Ganeshi Sah was not having a wrist watch at the time of occurrence. He has stated that under duress, he has stated before police as he was assaulted by police. Therefore, PW 6 does not appear to be a witness who can be relied upon. PW 7 has supported the deposition of other witness that prior to the occurrence a case was lodged by the accused persons of that case. In that case, this witness, deceased Ganeshi Sah and others were accused. Therefore, this witness is an interested witness and he has to settle his matter regarding conduct of the deceased. In para-24 of his evidence he has stated that the deceased was accused in a case of murder and dacoity, He has denied that Ganeshi Sah was killed in connection with dacoity at Motihari. PW 8 has stated about the conduct of the deceased's brother who has gone to jail in connection with dacoity. PW 9 is a witness of recovery of dead body of Ganeshi Sah. PW 10 is brother of the deceased but he has denied that the deceased Ganeshi Sah was accused in any murder case. Meaning thereby this witness is contradicting other witnesses and his tried to conceal the fact that the deceased himself was a person of chequred history. PW 11 was at relevant time a Dafadar. The informant in her evidence has stated that PW 11 and PW 12 have also tried to intervene and they being chowkidar and Dafadar have requested the accused persons for sparing. Not only PW 11 but PW 12 have been declared hostile and these two witnesses have not supported any part of the allegation. PW 14 is a witness of the recovery of the dead body and according to him the corpse was not of head. hand and foot and it was not worth identifying. 8. The post-mortem upon the dead body of Ganeshi Sah (the deceased) has been conducted by PW 3 Dr. PW 14 is a witness of the recovery of the dead body and according to him the corpse was not of head. hand and foot and it was not worth identifying. 8. The post-mortem upon the dead body of Ganeshi Sah (the deceased) has been conducted by PW 3 Dr. B.N. Mishra on 07.07.1980 who was posted as C.A.S. at Madhepura and had found the following injuries on opening of the thorax. (I) Fracture of 3rd to 6th ribs and interiorly causing injury to the interior surface of the right lung and ante-mortem blood two pints, were present in the right pleural space. (II) Fracture of 3rd to 6th ribs interiorly of the left side. The body was headless, neckless and upper two limbs, lower two limbs from below of the level of knees were missing. These are cut injuries by sharp cutting weapon by many attempts and are post-mortem injuries, were also found. 9. Injury No. I and II were caused by hard and blunt substance and they could be caused by the butt of the pipe gun also which were ante-mortem. Time elapsed since death was within five days. The dead body was identified by the constables, chowkidars and relatives. The doctor has not found any injury upon the back portion of the body or in front. He has stated that cutting of the limbs have followed the death. The doctor has not found any special mark on the dead body. 10. The defence has raised a serious challenge regarding identification of dead body. The assertion of the prosecution is that the dead body was definitely of Ganeshi Sah but the appellants has averted that dead body was of some other person and they have been roped in because PWs 4, 8, 9 and 10 have Claimed the identification of the dead body of Ganeshi Sah with the assistance of ganji and dhoti which were being worn by him. PW 15 has stated that the deceased was having a punch-mark on his back. Therefore, the missing link of the identification is the punch-mark which has been claimed by wife of the deceased. PW 14 is the Executive Magistrate in whose presence the dead body was taken out. The inquest was accordingly prepared. The specific reply of PW 14 is that the dead body was not identifiable. Therefore, the missing link of the identification is the punch-mark which has been claimed by wife of the deceased. PW 14 is the Executive Magistrate in whose presence the dead body was taken out. The inquest was accordingly prepared. The specific reply of PW 14 is that the dead body was not identifiable. PW 14 is an independent witness rather he is official witness who has come to the Court to depose as he was associated with the recovery of the dead body in his official capacity. The inquest report mentions that the dead body of a person had no head, arm, leg. There is no mention anywhere either in the inquest report postmortem report or in any document that the dead body was having any punch-mark on the back. Since the punch-mark has been claimed to be the basis of identification and there is no mention at all in any document that the deceased was having any punch-mark upon his back. Even the witnesses who have deposed on the factum of identification have not stated that any punch-mark was present upon the dead body. For ordering of conviction under Section 302 of the Indian Penal Code, the identification of the dead body must be established at least it should be established by the prosecution that the dead body which is being sought to be of the deceased was of the deceased only and no one else. If a body is not having arm, leg or head then also the body can be identified but for that specific evidence must be brought. The specific and assertive evidence of the prosecution is that the deceased was having a punch-mark upon his back but not even one witness has stated that any punch-mark was present upon the dead body. The identification is being claimed primarily on the basis of apparel that the deceased having and that apparel was ganji and dhoti which are common articles and are being used by the most common persons of the area and that ganji and dhoti had also no mark of identification. Therefore, it would be very difficult to hold that the dead body was of Ganeshi Sah. Once that evidence goes then it becomes very difficult to hold that Ganeshi Sah was killed. When the killing is doubted then the manner automatically vanishes. 11. Witnesses of the present case are interested. Therefore, it would be very difficult to hold that the dead body was of Ganeshi Sah. Once that evidence goes then it becomes very difficult to hold that Ganeshi Sah was killed. When the killing is doubted then the manner automatically vanishes. 11. Witnesses of the present case are interested. Independent witnesses have not supported the prosecution case, Chowkidar and Dafadar who have been relied upon by the informant since beginning of the fard beyan to the evidence have denied the version as alleged by the informant. They were independent witnesses and they have not supported the allegations as levelled by the informant. The prosecution case is consistent that many independent persons were present throughout the occurrence but those witnesses who ought to have divulged the oral version have not come to depose. No doubt, independent witnesses are reluctant to be either on the side of prosecution or defence and they wanted to be neutral but if evidence is that such witnesses have participated and they have tried to rescue the deceased then it can be said that they wanted to assist the informant and when they are not coming forward then it creates doubt as to whether they have witnessed the occurrence or not. 12. The evidence on record of the informant is that all the fifteen persons have contributed in the occurrence but out of them six persons have been acquitted by the trial Court. The identification of the dead body has not been established. Independent witnesses have not been produced. The prosecution has tried to conceal the evidence that the deceased himself was accused in many cases and some cases related to murder and dacoity. The Investigating Officer of the present case has not been examined and his examination was must. 13. In the facts and circumstances, the aforesaid discussions goes to show that the prosecution has not cleared the doubt as to whether the recovered dead body was of the deceased Ganeshi Sah or not and as to whether the appellants have participated in commission of the occurrence or not. 14. In view of the discussions made above, it is apparent that the prosecution has not been able to prove the charges against the appellants beyond shadow of all reasonable doubts. Once a doubt is created then the benefit of doubt goes to the accused persons. 15. 14. In view of the discussions made above, it is apparent that the prosecution has not been able to prove the charges against the appellants beyond shadow of all reasonable doubts. Once a doubt is created then the benefit of doubt goes to the accused persons. 15. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds. 16. Let copies of the first and last page of the judgment be handed over to the appointed amicus curiae, as stated above, who has assisted the Court satisfactorily and he will get his prescribed fee through High Court Legal Services Committee Patna. Appeal allowed.