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2015 DIGILAW 381 (JHR)

Bhuneshwar Bhagat v. State of Jharkhand

2015-03-18

R.R.PRASAD, RAVI NATH VERMA

body2015
JUDGMENT : This appeal filed on behalf of the above named three appellants is directed against the judgment of conviction and order of sentence dated 4.8.2004 and 6.8.2004 passed by the then 9th Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 13 of 2003 whereby and whereunder the court having found the appellants guilty for committing murder of Sarju Bhagat and causing injuries to Pyari Devi (PW3) with an intention to cause her death, convicted them for the offences punishable under sections 302 IPC and and also under sections 307/326/34 as well as under sections 449 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for life and also to pay fine of rupees five thousand for the offence punishable under section 302/34 IPC and, in default of payment to undergo simple imprisonment for three months, and further sentenced them to undergo rigorous imprisonment for seven years each for offences punishable under section 307/34 and 449 of the Indian Penal Code and to undergo rigorous imprisonment for three years for offences punishable under sections 326/34 of the Indian Penal Code, and all the sentences were ordered to run concurrently. 2. The case of the prosecution is that in the intervening night of 20/21.8.2002 while the deceased Sarju Bhagat was sleeping in his thatched house along with his wife, these three appellants entered into the room, at about 1 .00 a.m. and inflicted injuries upon Sarju Bhagat. When his wife Pyari Devi (PW3) tried to intervene in the matter, she was also inflicted with chhura injuries. Thereupon, she raised alarm upon which the informant Raju Bhjagat (PW5), his brothers Shankar Bhagat and Chhotelal Bhagat ( P.Ws. 1 & 6) , Damodar Bhagat (accused) and also Indu Devi PW2, wife of PW1 Shankar Bhagat, rushed to the room of the deceased. While PW5 was coming rushing towards the room of the deceased, he saw these appellants coming out of the room having 'chhura' with them. PW5 chased them, but did not succeed in apprehending them. Thereafter he returned back to the room of his father where he as well as other witnesses named above found the father dead. They also found Pyari Devi PW3 injured who disclosed to them that it were the appellants who had committed murder of her husband and caused injuries to her. 3. Thereafter he returned back to the room of his father where he as well as other witnesses named above found the father dead. They also found Pyari Devi PW3 injured who disclosed to them that it were the appellants who had committed murder of her husband and caused injuries to her. 3. The injured Pyari Devi was removed to Tisco West Bokaro Colliery Hospital. There, at about 4.30 a.m. one A.K. Sinha, officer incharge of the West Bokaro Out Post, came along with the investigating officer Kamla Prasad Singh (PW8) and recorded fard beyan (Ext. 3) of Raju Bhagat (PW5) upon which a formal FIR was drawn. Thereupon the investigating officer (PW8) took up investigation of the case. During investigation he came to the place of occurrence where he held inquest on the dead body of the deceased and prepared an inquest report ( Ext. 6 ) and sent the dead body for its post mortem examination which was conducted by Dr. A.K. Sinha (PW9) who did found the following injuries on the person of the deceased. Stab wound 2” x 1” x chest cavity deep at the left upper part of the front of the chest near sternum base. (ii) Stab would 1” x 1” x muscle deep at the upper right thigh. (iii) Stab wound ½” x ½” x muscle deep at the middle of front of right leg. Upon internal examination left lung was found ruptured, thorasic cavity was filled with blood clots of about four ounces. The doctor issued post-mortem examination report ( Ext. 4) with an opinion that the death was caused due to shock and heamorrage on account of above mentioned injuries caused by sharp cutting instruments. 4. Meanwhile, the investigating officer sent Pyari Devi PW3 to the TISCO West Bokaro Colliery Main Hospital for her treatment where she was examined by Dr. Chitra Das (PW10) who found the following injuries on her person : (I) Incised wound 2.5 cm x 2 c.m upto abdominal cavity deep spindle shaped, gaping, edges, smooth, even clean cut well defined everted fresh bleeding seen just below right costal margin 1” left to mid line, grievous in nature, caused by sharp cutting weapon. Chitra Das (PW10) who found the following injuries on her person : (I) Incised wound 2.5 cm x 2 c.m upto abdominal cavity deep spindle shaped, gaping, edges, smooth, even clean cut well defined everted fresh bleeding seen just below right costal margin 1” left to mid line, grievous in nature, caused by sharp cutting weapon. However, the Doctor ( PW 10) has testified that as per Specialist following injuries were found :- (a) Sharp cut injury in the anterior wall of stomatch , size 6cm x 1cm near greater curveture 6cm above the pylorus ; (b) liver capsule and parenchyma is cut at the anterior margin near porta hepetas of 2cm x 1cm; (II) Incised injury 1.2cm x 5 cm x 5 cm spindle shape gaping, edge smooth, even everted fresh bleeding seen over right anterior/superior spine; The doctor issued injury report ( Ext. 5 ) with consultation to Specialist Surgeon opining therein that if timely treatment would not have been provided, then the patient may have died due to shock. Meanwhile, the investigating officer (PW8) made inspection of the place of occurrence and recorded statements of the witnesses and after completion of the investigation, charge sheet was submitted not only against these three appellants, but also against Damodar Bhagat upon which cognizance of the offence was taken and when the case was committed to the court of sessions, all the four accused persons were put on trial. 5. During trial, the prosecution examined as many as ten witnesses. Of them, PW3 Pyari Devi is an injured witness,whereas PW1 Shankar Bhagat, PW2 Indu Devi, wife of the PW1; Informant (PW5) and Chhotelal Pd (PW6) brother of the informant are witnesses on the point that they after hearing the alarm when came to the room of the deceased, they found the deceased dead and came to know from PW3 that it was the appellant who committed murder of the deceased and also caused injuries to PW3. PW4 and 7 are the witnesses to the inquest report. However, PW4 has been declared hostile. 6. The trial court having found PW3 as well as the other witnesses, PWs 1, 2, 5 and 6 trustworthy whose testimonies getting corroboration from the post mortem examination report (Ext. PW4 and 7 are the witnesses to the inquest report. However, PW4 has been declared hostile. 6. The trial court having found PW3 as well as the other witnesses, PWs 1, 2, 5 and 6 trustworthy whose testimonies getting corroboration from the post mortem examination report (Ext. 5) and also from the injury report, recorded the order of conviction and sentence against these three appellants, whereas Damodar Bhagat was not found guilty and, accordingly, he was acquitted. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been preferred on behalf of the appellants. 7. At the out set, it be stated that when the case was called out, it was pointed out by Mr. A.N. Deo, Senior Counsel appearing on behalf of the appellants that one of the appellants, Dhaneshwar Mahato @ Charka Mahato, had earlier been admitted to bail. But subsequently, the order granting bail had been cancelled, but he did not surrender before the court below and thereby he has absconded. In such circumstances, we are not dealing with his case so far as the merit is concerned; rather, we confine ourselves with respect to the two appellants, namely, Dhaneshwar Bhagat and Prakash Sao. 8. Mr. A.N. Deo, Learned Senior Counsel appearing on behalf of the appellants submits that the fard beyan upon which first information report (FIR) has been lodged is nothing but a by-product of concoction and has been made purposely to falsely implicate these appellants and moreover, it should not have been treated as the FIR in view of the testimony of the informant (PW5) given at para 18 and 19 testifying that he had taken the mother to the police station where she was in the state of consciousness. Furthermore, he has testified that before he had lodged the case, Mukhiyaji had given information to the police and that he had given statement at his house and subsequently at the police station. By referring to those statements of PW5, it was submitted that it is quite evident that before the fard beyan was recorded by the officer-in-Charge, West Bokaro Out Post, information had already been given to the police station, but that has never been brought on record and thereby the case of the prosecution becomes too suspicious. By referring to those statements of PW5, it was submitted that it is quite evident that before the fard beyan was recorded by the officer-in-Charge, West Bokaro Out Post, information had already been given to the police station, but that has never been brought on record and thereby the case of the prosecution becomes too suspicious. In this regard, it was further submitted that admittedly, there had been land dispute between the appellant Prakash Saw and the deceased and that the deceased and his family members were also annoyed with the appellant Bhuneshwar Bhagat, as, according to the case of the prosecution itself, he was having extra marital relation with Rekha Devi, wife of Damodar which the deceased and the family members were never liking. Therefore, on account of this reason, both the appellants have been falsely implicated. 9. It was further submitted that the testimony of PW2 who has claimed to have had chased the appellants who were having chhura with them cannot be believed as had PW5 been chased by the appellants, he would not have been spared by the appellants and, therefore, the claim made by PW5 that he identified the appellants while he was chasing them cannot be accepted. Under the circumstances, the judgment of conviction and order of sentence is fit to be set aside. 10. As against this, learned counsel appearing for the State submits that it is true that PW5, the informant, in his evidence at paragraphs 18 and 19 has testified in the same manner as has been pointed out on behalf of the appellants, but the effect of those statements gets nullified from the fact that the fard beyan had already been recorded at 4.30 a.m on 21.08.2002 at the TISCO West Bokaro Colliery Hospital, whereas whatever statements have been made by PW5, those statements as per PW5 have been made at 8.00 A.M on 21.08.2002 at his village and, therefore, those statements cannot be said to be first statement. Further it was submitted that PW3, an eye witness, also happens to be an injured witnesses and thereby her testimony can not be rejected when her testimony gets corroboration from the post-mortem report (Ext. 4) and also from the injury report (Ext. Further it was submitted that PW3, an eye witness, also happens to be an injured witnesses and thereby her testimony can not be rejected when her testimony gets corroboration from the post-mortem report (Ext. 4) and also from the injury report (Ext. 5) and, therefore, under the circumstances, the trial court has rightly recorded the judgment of conviction and order of sentence against the aforesaid two appellants namely, Prakash Sao and Bhuneshwar Bhagat. 11. Having heard learned counsel for the parties and on perusal of the record, we do find that it is the case of the prosecution that at about 1.00 a.m. in the night of 20.02.2002/ 21.2.2002 when the deceased Sarju Bhagat and his wife Pyari Devi (PW 3) were sleeping in their thatched house, these appellants came and entered into the room and inflicted injuries upon the deceased Sarju Bhagat. When she tried to save here husband, she was also inflicted with injuries by these two appellants and also by Dhaneshwar Mahto. According to her testimony, she identified these appellants and also the other absconding accused in the light of an electric bulb. According to the learned counsel appearing for the appellants, this fact relating to the identification of the accused persons in electric bulb is not there in the fard beyan and, therefore, that piece of testimony must be taken to be an after-thought. It is true that the said fact is never there in the fard beyan, but every point which is not so intimately connected with the material fact even if is not there to be an encyclopedia of the entire case. 12. PW3 in her testimony, as said above, has claimed to have identified the appellants and the other accused, but nothing has been elicited from her in cross-examination to discard that piece of evidence. Further, we do find that when PW3 raised alarm, PW5 upon hearing the alarm came out of his house which was adjacent and rushed to the room of his father, he saw these two appellants coming out of the room having chhura with them and chased them, but did not succeed in apprehending them. Further, we do find that when PW3 raised alarm, PW5 upon hearing the alarm came out of his house which was adjacent and rushed to the room of his father, he saw these two appellants coming out of the room having chhura with them and chased them, but did not succeed in apprehending them. When as per the evidence, PW 5 came to the room of his father, he found the father dead having injuries on his person and also found his mother (PW3) injured, who disclosed to PW 5 about the name of the appellants who had caused injury on her husband and also upon her. Not only PW 5 was told about the name of the appellants, but PW3 also disclosed that fact to Shankar Bhagat (PW 1), Indu Devi (PW2), and Chotelal Prasad (PW 6) who, according to the evidence, had immediately reached to that room and, therefore, the testimonies of these witnesses, -particularly PWs 1, 2 and 6 being so connected with the fact in issue so as to form part of the same transaction,-are relevant and can be taken to be admissible in evidence in view of the provisions as contained in Section 6 of the Evidence Act. 13. Further, we do find that the testimony of the eye witness (PW 3) gets corroboration from the medical evidence whereby the doctor did find two injuries, -(I) over the chest and (ii ) over the right leg. It is worthwhile to mention here that as per the testimony of PW 3, two persons inflicted injuries over the chest of the deceased, but only one injury as per the medical evidence is there over the chest which, at the first hand, appears to be contrary to the medical evidence. But if we consider the facts and circumstances that the PW 3 at the time of occurrence must have been in such a state that she may not have noticed clearly about the place where the injuries had been inflicted. However, she in her cross examination has testified that one appellant had inflicted injury over the leg also. Moreover, we may record that had PW3 been not an injured witness, we could have attached some importance to this fact that the testimony of PW3 is not consistent with the medical evidence. However, she in her cross examination has testified that one appellant had inflicted injury over the leg also. Moreover, we may record that had PW3 been not an injured witness, we could have attached some importance to this fact that the testimony of PW3 is not consistent with the medical evidence. But when we do find that the PW3 is an injured witness, we do not attach much importance to the inconsistency which is there in the evidence of PW3 vis-a-vis medical evidence. 14. So far as the submission advanced on behalf of the prosecution relating to the FIR being not the first version, rather it is a subsequent concocted version of the informant, we do not find substance in the submission advanced in the facts and circumstances of the case. 15 We have already noted that the occurrence is said to have taken place in the intervening night of 20.08.2002 and 21.08.2002 in which Sarju Bhagat has been done to death, whereas PW 3 had been injured who had been brought to Tisco Hospital, West Bokaro, for her treatment where the office-in-charge of the Out Post came alongwith PW8 and recorded fard beyan at 4.30 a.m. whereas PW 5 in his evidence at paragraph 18 has stated that when the police came at the place of occurrence at about 8.00 am., he gave his fard beyan and subsequently also, gave statement at the police station which statement is subsequent to the statement made at the hospital upon which FIR was drawn. It be also recorded that the PW 5 has also stated that before he gave his fard beyan, one Mukhiyaji had also given information to the police station, but nothing has been brought on record, nor anything has been elicited from the officer incharge of the Police Station as to which kind of information Mukhiyaji had given to the police station. Whether it was vague or not, we are not aware of it and, therefore, simply on account of the statement being made by PW5 to the effect, as pointed out above, we can not discard the fard beyan of PW3 not being his first statement. Under the facts and circumstances, we no not have any hesitation in recording that the witnesses are trustworthy. Any plea taken with respect to false implication of the appellant on account of enmity is not acceptable. 16. Under the facts and circumstances, we no not have any hesitation in recording that the witnesses are trustworthy. Any plea taken with respect to false implication of the appellant on account of enmity is not acceptable. 16. Thus, we do find that the trial court has not committed any illegality in recording the judgment of conviction and order of sentence, so far as appellants Bhubneshwar Bhagat and Prakash Sahu are concerned and thereby the judgment of conviction and order of sentence passed against them is hereby affirmed. 17. So far as appellant Dhaneshwar Mahato is concerned, his appeal is dismissed for default as he has been absconding. But in view of the decision rendered in Cr. Appeal no. 226 of 1997 (P) (Angad Singh vs. State of Bihar (now Jharkhand) reported in 2011 (1) JLJR 142 , as and when the appellant, Dhaneshwar Mahto surrenders or is arrested by the Police, he may prefer an application for restoration of this criminal appeal. Only upon surrendering of the appellant or upon his arrest by the police, his appeal can be heard on merit if he prefers an application for restoration of the dismissed appeal. 18. The bail bonds of appellants Bhuneshwar Bhagat and Prakash Sao who are on bail are cancelled. They are directed to surrender forthwith to serve the sentence, failing which the trial court shall take all coercive steps for apprehending the appellants so that they may serve out the sentence. 19. Thus, this appeal stands dismissed.