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2016 DIGILAW 1 (JHR)

Bhawani Giri v. State of Jharkhand

2016-01-04

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : By Court 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 20.01.2006 and 24.01.2006, respectively, passed by the Additional Sessions Judge, Ghatshila, in connection with Sessions Trial No.468 of 2004, corresponding to Bahragora P.S. Case No. 49 of 2004, G.R. Case No. 301 of 2004, whereby the sole appellant Bhawani Giri @ Hagu Giri has been held guilty under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, in brief, is that on 12.08.2004 at about 6.45 a.m the deceased was going to his field but on the way he was assaulted by the appellant Bhawani Giri @ Hagu Giri by means of iron rod and the blow was hurled from behind on the head of deceased Ashok Dandapat. After the incident, the witnesses assembled and they took injured Ashok Dandapat to near by clinic and from their he was referred to another hospital, but again the doctor suggested to take him to Jamshedpur. On the way Ashok Dandapat breathed his last. Thereafter, the dead body was taken to the police station. The Fard-beyan of Gita Devi (P.W-3), who happens to be wife of the deceased, was recorded at village Kesarda at about 11.30 a.m on 12.08.2014. On the basis of Fard-beyan of Gita Devi, Baharagora P.S. Case No. 49 of 2004 dated 12.08.2004 under Section 302 of the Indian Penal Code against accused Bhawani Giri @ Hagu Giri was registered. 3. The police after due investigation submitted charge-sheet and accordingly cognizance for the offence punishable under Section 302 of the I.P.C was taken. Since the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the case of the sole appellant was committed and it was registered as S.T. No. 468 of 2004. 4. Charge under Section 302 of the IPC was framed, the appellant did not plead guilty and claimed to be tried. The prosecution in order to substantiate the charge examined altogether five witnesses, namely, P.W.-1, Rabindranath Dandapat, P.W.-2, Satyaban Dandapat, P.W.-3, Gita Dandapat, P.W.-4, Anjani Kumar, P.W-5, Dr. Akhilesh Kumar Chaudhary. Out of the aforesaid five witnesses, P.Ws. 1 and 2 have claimed themselves to be the eye witnesses of the occurrence. The prosecution in order to substantiate the charge examined altogether five witnesses, namely, P.W.-1, Rabindranath Dandapat, P.W.-2, Satyaban Dandapat, P.W.-3, Gita Dandapat, P.W.-4, Anjani Kumar, P.W-5, Dr. Akhilesh Kumar Chaudhary. Out of the aforesaid five witnesses, P.Ws. 1 and 2 have claimed themselves to be the eye witnesses of the occurrence. P.W.-3 happens to be the informant whereas P.W.4 is the I.O and P.W.5 is the doctor who had conducted the autopsy on the dead body of Ashok Dandapat. 5. Learned counsel appearing for the appellant has assailed the impugned judgment on the ground that P.Ws. 1 and 2 are the close relatives of the deceased and they are highly interested witnesses. They had not seen the occurrence which would be apparent from their statements. Admittedly, they are the chance witnesses and the evidence of chance witness, if they are interested witness too, must be scrutinized with great caution. There appear vital contradictions in the statement of P.Ws 1 and 2 and P.W.3 on the material point. The Investigating Officer appears to have conducted the investigation under the influence of prosecution witnesses and he did not bother to examine independent witnesses, though independent witnesses had assembled on the spot just after the incident. The motive behind the incident has not been substantiated because the I.O did not examine the aggrieved mother and wife of the appellant. In support of such contention the learned counsel for the appellant has drawn my attention towards the statements of P.Ws. 1, 2 and 3. P.W.1 has stated in para no.1 of his deposition that on 12.08.2004 at 6.30 a.m. he was returning from his field. In para 2 he says that deceased Ashok Dandapat was going ahead followed by accused Bhawani Giri @ Hagu Giri and again he says in para 3 that Hagu Giri caused assault to the deceased on his head from behind by means of an iron rod and fled away. It is pointed out that if this witness was returning from his field he would not have been coming behind the deceased rather he would have been coming from opposite direction. By referring paragraphs 10 and 15 of P.W.2 it is submitted that deceased was uncle of P.W.2 and P.W.1 happens to be cousin brother of P.W.2. It is pointed out that if this witness was returning from his field he would not have been coming behind the deceased rather he would have been coming from opposite direction. By referring paragraphs 10 and 15 of P.W.2 it is submitted that deceased was uncle of P.W.2 and P.W.1 happens to be cousin brother of P.W.2. The conduct of these two witnesses do not appear to be natural because they did not follow the accused to apprehend him after the incident, though the deceased was closely related to them. It is further submitted that P.W.2 was ploughing his field situated at a distance of about 65 yards from the place of occurrence. It is a case of single blow and none of the eye witnesses have said that there was any hue and cry or exchange of words between the deceased and the appellant before the blow was hurled. It is not expected from a farmer, who has been ploughing his field, to watch on the road and to notice each and every moment as to what is happening over there. By referring the statement of P. Ws 1 and 2 it is brought to the notice of this court, when the deceased was brought to his house, wife of the deceased was not available rather uncle of the deceased was present. Thereafter, Ashok Dandpat was taken to a nearby clinic and then to hospital and then he was taken by them towards Jamshedpur for his treatment, but he died on the way. P.W.3, who is none else, but wife of the deceased, has given a contradictory statement. She says that she was present in the house while her husband left home for going to the field and it was about 6.30 a.m. within a while she was informed by a child that her husband has been assaulted by some villagers. After receiving such information, she rushed towards the place of occurrence and she met with her injured husband on the way, who was being carried by the villagers. It is pointed out by learned counsel that P.Ws. 1 and 2 are related to the deceased but they did not say that they met with the informant on the way rather they have said that wife of the deceased was not present in the house, when they took the deceased to home. P.W.3 did not name the P.Ws. It is pointed out by learned counsel that P.Ws. 1 and 2 are related to the deceased but they did not say that they met with the informant on the way rather they have said that wife of the deceased was not present in the house, when they took the deceased to home. P.W.3 did not name the P.Ws. 1 and 2 that they were accommodating the deceased towards hospital. The I.O. did not make any effort to find out the boy who had reported the incident to the informant. The I.O. did not examine the wife and mother of the appellant to confirm the motive behind the occurrence. P.Ws. 1 and 2 expressed their ignorance about any Panchayti held in the house of the appellant to restore the family dispute or it being attended by the deceased. They have admitted that they were never present in any such Panchayati, if held, in the house of the appellant. It is contended that P.W.2 in paragraph 21 of his deposition has named some of the witnesses who had assembled at the place of occurrence just after the incident, but none of them have come forward to support the prosecution case. The I.O did not make any effort to recover the iron rod used in committing murder of the deceased. 6. Learned counsel appearing for the prosecution has opposed the argument and submitted that evidence of P.Ws 1 and 2 are intact, they are the eye witnesses and they have supported the prosecution case. Minor contradictions are always expected in the statement of village witnesses. Both the witnesses have categorically stated that it was the appellant who was following the deceased at the time of occurrence and he caused assault to the deceased by means of iron rod from behind on his head. The injuries sustained find support from the postmortem report. Only because the witnesses are related to the deceased, their statements, if reliable, could not be discarded. If the investigating officer failed to discharge obligations cast upon him, the aggrieved should not suffer. The contradiction in the statement of P.Ws, 1, 2 and 3 is not as vital that the entire prosecution case is to be disbelieved. 7. We have gone through the statement of the witnesses and the documents available on record. We have perused the impugned judgment. The contradiction in the statement of P.Ws, 1, 2 and 3 is not as vital that the entire prosecution case is to be disbelieved. 7. We have gone through the statement of the witnesses and the documents available on record. We have perused the impugned judgment. There appear force in the arguments that P.Ws 1 and 2, have pretended themselves to be the eye witnesses, but they are not the eye witnesses. The conduct of P.Ws. 1 and 2 do not appear to be natural when they said that they did not bother to chase the accused to apprehend him. The occurrence, as per prosecution evidence, had taken place at about 6.45 a.m on a village road passing through field. The presence of farmers and labourers in the nearby field has not been denied rather some of them have also been named by P.W.2. Non-examination of independent eye witness or circumstantial witness or hearsay witness, who had reached to the place of occurrence just after the incidence, makes the prosecution case doubtful, as disclosed by P.Ws 1 and 2. The argument advanced also appears convincing on the point that P.W.2, according to his statement, was ploughing his field, situated at a distance of 65 yards from the place of occurrence and it is not expected that instead of concentrating towards ploughing, he would watch the happenings on the road. Needless to mention that no prosecution witness has made out a case that there was any scuffle between the deceased and appellant before the blow was hurled. It is true that in a case of a single assault there may not be availability of the eye witness and particularly in the circumstance in which the deceased was assaulted by the appellant as per the prosecution case, but then presence of witness who assembled after the incident is always expected and that had happened in the case at hand. Non-examination of any such witness also creates suspicion against the varasity of statements of P.Ws. 1 and 2. 8. P.W. 3 happens to be wife of the deceased and she is the informant. Her Fard-beyan was recorded in the village after death of the deceased. The statement, which she had given in her Fard-beyan or in her deposition in Court, did not find support from the evidence of P.Ws. 1 and 2. 1 and 2. 8. P.W. 3 happens to be wife of the deceased and she is the informant. Her Fard-beyan was recorded in the village after death of the deceased. The statement, which she had given in her Fard-beyan or in her deposition in Court, did not find support from the evidence of P.Ws. 1 and 2. because they had gone to the extent of saying that P.W.3 was not at all present in her house when the deceased in injured condition was taken over there. They did not say that P.W.3 had ever met them on the way, when they were bringing the deceased to his own house, likewise P.W.3 has also not given the name of these two witnesses that they were taking the deceased in injured condition to his house and then towards the hospital. Needless to mention that P.Ws. 1, 2 and 3 are known to each other which is apparent from the evidence available on record. 9. Non-examination of wife and mother of the appellant in order to get the motive proved, appears fatal. The statement of P.Ws. 1 and 2 appears to be doubtful. From the evidence available on record it is clear that independent witnesses had assembled at the place of occurrence but they were not examined by the I.O and they have not come forward to support the prosecution case. Considering all these aspects, particularly when the evidences of P.Ws. 1 and 2, is not free from doubt in view of the fact they are closely related to the deceased and interested witnesses and they also appear to be chance witnesses, inconsistency in the statements of P.Ws. 1, 2 and 3, I feel no hesitation to hold that P.Ws. 1, 2 and 3 are not trust worthy witnesses and reliance could not be placed to uphold the conviction. 10. In the result the impugned judgment of conviction and order of sentence dated 20.01.2006 and 24.01.2006 respectively, passed by Sri Arun Kumar Datta, Additional Sessions Judge, Ghatsila, in Sessions Case No.468 of 2004 is hereby set aside and the appeal is allowed. Accordingly, the appellant Bhawani Giri @ Hagu Giri is acquitted from the charges levelled against him and directed to be released forthwith from jail custody, if not wanted in any other case and for that appropriate direction may be issued, if necessary, by the convicting/successor Court.