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2017 DIGILAW 1109 (JHR)

Arun Hazam v. State of Jharkhand

2017-07-13

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : H.C. Mishra, J. Both these appeals arise out of the same case, as such, they are heard together and being disposed of by this common Judgment. 2. Heard learned counsel for the appellants and learned counsel for the State, in both the appeals. 3. The appellants are aggrieved by the by the impugned Judgment of conviction dated 2nd May 2006 and Order of sentence dated 5.5.2006, passed by the learned Additional Sessions Judge, FTC-VIII, Giridih, in S.T. No.66 of 1990, whereby the appellant Arun Hazam in Cr. Appeal (DB) No. 1202 of 2006 has been found guilty and convicted for the offences under Sections 148 and 302 of the Indian Penal Code, the appellants Parmanand Pathak and Dasrath Turi in Cr. Appeal (D.B.) No. 883 of 2006 have been found guilty for the offences under Sections 148 and 324 of the Indian Penal Code, appellant Raghubansh Mishra and Suresh Choudhary, in the same appeal, have been found guilty for the offence under Section 148 of the Indian Penal Code and rest of the appellants were found guilty and convicted for the offence under Section 147 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant Arun Hazam has been sentenced to undergo life imprisonment and fine of Rs.2,000/- for the offence under Section 302 of the Indian Penal Code and R.I. for two years for the offence under Section 148 of the Indian Penal Code, appellant Dasrath Turi and Permanand Pathak have been sentenced to undergo R.I. for two years each for the offence under Section 148 of the IPC and R.I. for three years each for the offence under Section 324 of the IPC, the appellants Raghubansh Mishra and Suresh Choudhary have been sentenced to undergo R.I. for two years for the offence under Section 148 of the IPC, and the rest of the appellants were sentenced to undergo R.I. for two years for the offence under Section 147 of the IPC. 4. 4. According to the prosecution case, the informant Kailash Rai, claiming himself to be the Manager of Ram Temple situated in village Joganiatand, had given a written report before the Officer in-charge Ahilyapur Police Station, alleging therein that on the date of occurrence, i.e., on 23.5.1989, he being the Manager of the Temple, had gone with his brother Bhunu Rai, for taking out food grains from the store of the Temple for offering 'Bhog' in the Temple. In the meantime, about 30 persons, who are the accused persons in the case, came to assault these persons, whereupon, they started fleeing away, but they were waylaid near the well of one Bhagtu Choudhary. It is alleged in the written report that upon the orders given by the Ex-MLA Laxman Swarnkar, Arun Hazam assaulted his brother by sword on his neck. Second assault was made by Uma Mahto and third assault was made by Raghubash Mishra by farsi, fourth assault was made by Biranchi Mishra, causing the death of his brother Bhunu Rai at the spot. The informant was also assaulted by Dashrath Turi with the intention to cause his death, by an arrow, causing injury in his left leg, below knee. The son of the informant, namely, Rabindra Rai was also assaulted by accused Parmanand Pathak by farsi, and in course of saving himself, his fingers were injured. Thereafter all the accused persons fled away. In the written report, the names of all the accused persons, who had committed the offence, have been given. On the basis of written information, Ahilyapur P.S. Case No. 21 of 1989 corresponding to G.R. No. 66 of 1989 was instituted for the offences under Sections 147, 148, 149, 323, 324, 307 and 302 of the Indian Penal Code and investigation was taken up. After investigation the police submitted the charge sheet against the accused persons. 5. Upon commitment of the case to the Court of Session, charges were framed against all the accused persons and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. 6. In course of trial, nine witnesses were examined on behalf of the prosecution, out of whom, P.W.-8 Dilip Rai was only examined in part and thereafter he did not turn up for further examination and cross-examination, and accordingly, his evidence was expunged. 6. In course of trial, nine witnesses were examined on behalf of the prosecution, out of whom, P.W.-8 Dilip Rai was only examined in part and thereafter he did not turn up for further examination and cross-examination, and accordingly, his evidence was expunged. The I.O. of the case has not been examined, and the F.I.R. was proved as Ext.-6, by a formal witness P.W.-9 Bhudeo Choudhary. 7. P.W.-7 Kailash Rai is the informant in this case and he has stated that the occurrence had taken place on 23.5.1989 at about 10.00 A.M., when, in the Thakurbari situated at Joganiatand village, they were taking out food grains for offering 'Bhog' in the Temple, 29-30 persons came there and they tried to assault this witness Kailash Rai, Bhunu Rai, Ravindra Rai, whereupon they started fleeing away. They were chased by the accused persons and were waylaid by them near the well of Bhagtu Choudhary. Upon the order given by Laxman Swarnkar, Arun Hazam assaulted Bhunu Choudhary by sword, causing injury on his neck. Uma Charn Verma also assaulted him by Tangi on his neck. Raghubansh Mishra assaulted by farsi on his shoulder. Bhunu Rai died at the spot. Dasrath Turi assaulted this witness by arrow causing injury on his left leg below knee. Permanand Pathak assaulted Rabindra Rai by farsa, causing injuries on his fingers. At that time, the other accused persons were surrounding them. This witness has stated that he got the written report written by Mithilesh Singh, upon which, he put his signature, which he identified and the same was marked as Exhibit-5. He has identified the accused persons present in the Court and had claimed to identify the others too. This witness was put to extensive cross-examination, in which, he has admitted that he has no document, by which he was appointed as Manager of the Temple. He has also admitted that there was a Title Suit for the ownership over the Temple, which he had lost and he had filed appeal against the Judgment in the Title Suit. He also admitted in his cross-examination that being the Manager of the Temple, he was not keeping any account of the expenditures of the Temple and earlier also, there was a case against him for the offence under Section 379 of the Indian Penal Code. He also admitted in his cross-examination that being the Manager of the Temple, he was not keeping any account of the expenditures of the Temple and earlier also, there was a case against him for the offence under Section 379 of the Indian Penal Code. He has stated that the Collector of the District was never informed about the fact that he was the Manager of the Temple and he has specifically admitted that the accused Raghubansh Mishra was declared to be the Mahant of the Temple in the Title Suit. In his cross-examination, this witness claimed to be the owner of the Temple, but he has admitted that he has no document for the same. 8. P.W.-1 Rabindra Rai is the son of the informant, who has also supported the prosecution case more or less in the same manner as stated by the informant, and he has also stated about the injury caused to him in course of occurrence. In his cross-examination he has admitted about the counter case filed for the same occurrence. 9. P.W.-3 Arjun Rai is brother of the informant and he is not the eyewitness to the occurrence. He reached the place of occurrence upon getting the information about the occurrence, and he saw his brother Bhunu Rai dead and Kailash Rai and Rabindra Rai injured. He has stated that he was informed about the occurrence by his brother Kailash Rai. 10. P.W.-5 Prakash Rai is a witness to the inquest report and he has stated that on 23.5.1989, the police had prepared the inquest of the dead body of the deceased, upon which, he had put his signature. He has identified his signature on inquest report, which was marked Exhibit-1/2. 11. P.W.-6 Bishnu Prasad Choudhary is the seizure list witness, who has identified his signature and the signature of another witness on the seizure list, which was prepared in his presence. On his identification, the seizure list has been marked Exhibit-4, which relates to the seizure of one stick, four arrows and blood stained soil from of place of occurrence. 12. P.W.-2 is Dr. Syed Wazhuddin, who had examined the injuries on the informant Kailash Rai on 23.5.1989 and he has proved one penetrating wound with intact arrow, causing entry and exit wounds on left leg and he had referred the injured to the Giridih Sadar Hospital for removal of that arrow. 12. P.W.-2 is Dr. Syed Wazhuddin, who had examined the injuries on the informant Kailash Rai on 23.5.1989 and he has proved one penetrating wound with intact arrow, causing entry and exit wounds on left leg and he had referred the injured to the Giridih Sadar Hospital for removal of that arrow. He has proved the injury report of the informant Kailash Rai, which was marked Exhibit-2. On the same day he had also examined the injuries of Rabindra Rai and proved the injuries on his fingers, which were caused by sharp cutting weapon, and were simple in nature. He has proved the injury report, which was marked Exhibit-2/1. 13. P.W.-4 is Dr. Ajit Kumar Sahay, who had conducted the post-mortem examination on the dead body of the deceased on 24.5.1989 at 4.15 P.M., and had found the following ante-mortem injuries on the dead body:- (i) Incised wound of the left side of neck 5”x1 1/2”x partial cutting of 6th cervical vertebra. Wound was starting from above angle of mandible extending obliquely and backward up to back of neck at the level of C-6 vertebra. (ii) Penetrating wound 1 1/2”x1”x muscle deep on posterior aspect of left arm. Margin was regular and defused. (iii) No apparent ante-mortem injury on both legs as mentioned in inquest. Other findings were as follows:- (A) Rigor mortis – absent. (B) Foul smell coming from dead body. (C) whole body swollen. (D) Post mortem – pealing of skin was present all over the body. On dissection - 1. Carotid vessels and jugular veins were completely cut. 2. Larynx-N.A.D. 3. Trachea – N.A.D. 4. Lungs – N.A.D. 5. Heart - both chambers empty 6. Liver – N.A.D. 7. Stomach contained full diet - rice potato etc. 8. Mucus membrane of stomach – N.A.D. 9. Spleen and kidney – N.A.D. 10. Bladder - empty 11. Skull and brain - N.A.D. He has stated that injury No. (i) was caused by sharp cutting weapon, such as sword, injury No. (ii) was caused by sharp pointed weapon and the death was caused due to shock and hemorrhage due to the injuries stated above. This witness has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-3. 14. As against the above, the defence has also examined one witness, who is DW-1 Uma Charan Mahto, an accused in this case. This witness has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-3. 14. As against the above, the defence has also examined one witness, who is DW-1 Uma Charan Mahto, an accused in this case. This witness has stated that the Temple was situated at the distance of about 50-60 yards from his house and the occurrence had taken place on 23.5.1989. The Pujari of the Temple Satrughan Mishra raised the alarm that the property of the Temple was being looted, whereupon they went to the place of occurrence and found that Kailash Rai, Rabinder Rai, Dilip Rai, Bhunu Rai, Arjun Choudhary and two other persons were looting the food grains from the store of the Temple after breaking the lock. They also loaded the food grains on a bullock cart and proceed towards their house. When they were objected, they threatened to kill them, whereupon the occurrence had taken place, in which, two persons of the defence side, including this witness, were also injured. The property of the Temple worth 25-30 thousand rupees was looted away. This witness was put to cross-examination, but there is nothing of much importance in his cross-examination. 15. The defence has also proved some documents, which are the FIR in the counter case of the same day, which was marked Exhibit-A, in which, there is allegation against five named accused persons, including the informant, the injured and the deceased of the present case, and two unknown persons, of committing dacoity in the Temple and about the occurrence, in which, two persons were injured. However, the case was instituted only for the offence under Sections 147, 148, 323, 324, 337 and 307 of the Indian Penal Code. The charges framed against the prosecution side in the trial following the said FIR, were also proved by the defence, which were marked Exhibit B series. The defence has also proved the certified copy of the Judgment passed by the Additional District Judge, Giridih, in the Title Appeal Nos.4 of 1998 and 6 of 1998, which were filed against the Judgment of Title Suit No.25 of 1993, decreeing the suit in favour of Raghubansh Mishra, and this Judgment shows that the appeals were dismissed and decreed passed by the Trial Court was confirmed. This Judgment has been marked Exhibit–C on behalf of the defence. 16. This Judgment has been marked Exhibit–C on behalf of the defence. 16. Learned counsel for the appellants submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below are absolutely illegal and cannot be sustained in the eyes of law. It is submitted that the informant's side were intruders in the Temple, though they had no right over the Temple and they were looting the food grains from the store of the Temple after breaking the lock, which was being objected and occurrence had taken place, when they managed to take away the food grains from the Temple and were taking it towards their house. It is submitted that in the occurrence, two persons from the defence side were also assaulted and injured. Learned counsel submitted that this clearly shows that the prosecution has not come with the true story of the case. It is submitted that in the facts of the case, the accused persons were exercising the right of private defence of the Temple property as it is an admitted fact by P.W.–7 Kailash Rai, the informant, that in the Title Suit the accused Raghubansh Mishra, was declared to be the Mahant of the Temple. It is submitted that the appeal filed by the informant against the Judgment of the said Title Suit, was also dismissed by the Appellate Court vide Judgment proved as Exhibit–C. Learned counsel further submitted that there are discrepancies in the manner of occurrence as stated in the FIR and the evidence adduced by the prosecution side. It is further submitted by learned counsel that non-examination of the I.O. in the case has seriously prejudiced the defence, in as much as, the materials which were collected during investigation, and mentioned in the case diary, could not be taken by the defence. Learned counsel submitted that in view of the fact that the prosecution has come out with a false story about the manner and genesis of occurrence, the benefit thereof must go to the defence, and even though, PW–7 Kailash Rai and PW–1 Rabindra Rai have supported the prosecution case as eyewitnesses and they were also injured in the occurrence, in the facts of the case, the appellants were entitled, at least, to the benefits of the doubt. 17. 17. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that the prosecution been able to prove the charges against all the appellants beyond all reasonable doubts, in as much as, the ocular evidence of PW–7 Kailash Rai and PW–1 Rabindra Rai, who were also injured in the occurrence, are fully corroborated by the medical evidence of PW–2 Dr. Syed Wazeuddin and the injury report, which were proved by him as Exhibits-2 and 2/1, as also the medical evidence of PW–4 Dr. Ajit Kumar Sahay, and the post-mortem report proved by him as Exhibit-3. Learned counsel accordingly, submitted that the prosecution has been able to prove the prosecution case beyond all reasonable doubts that the appellant Arun Hazam, who was armed with deadly weapon had given the fatal blow on the deceased Bhunu Rai and the other appellants had also assaulted the deceased with the intention to cause his death. Kailash Rai and Rabindra Rai had also been injured in the occurrence committed by the accused persons, who were the members of unlawful assembly, armed with deadly weapons. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 18. Having heard learned counsels for both the sides and upon going through the record, we find that according the prosecution case, the occurrence had taken place on the order given by Ex-MLA Laxman Swarnkar, but there is nothing on the record to show as to why the said Ex-MLA had not been sent up for trial. So far as the prosecution case is concerned, we find force in the submission of the learned counsel for the appellants that the prosecution has not come out with true story of the occurrence, in as much as, it is an admitted fact by the informant, PW–7 Kailash Rai that he had no document claiming ownership over the Temple. He has stated about the Title Suit between the parties for the ownership of the Temple in question and has also admitted that in the Title Suit, the accused Raghubansh Mishra was declared to be the Mahant of the Temple. It is also admitted by him that he had filed the Title Appeal against the Judgment of the said Title Suit. It is also admitted by him that he had filed the Title Appeal against the Judgment of the said Title Suit. The defence has proved the Judgment passed by the Appellate Court in Title Appeals against the judgment of the Title Suit, which shows that the decree passed in the Title Suit was confirmed and the appeals were dismissed. In that view of the matter, the defence story that accused Raghubansh Mishra was the Mahant of the Temple and they were exercising their valid right over the Temple, appears to be true and trustworthy. The informant Kailash Rai, who claimed to be the Manager of the temple, has failed to prove the fact that he was the Manager of the Temple and apparently, he had no right to enter the store of the Temple to take out the food grains of the Temple. Indeed, the counter case is also admitted by the prosecution and the FIR thereof has been proved as Exhibit–A, which shows that the prosecution side had gone to commit theft / dacoity in the store of the Temple after breaking the lock, due to which, the occurrence had taken place. We have also gone through the case diary available on the Lower Court Records, to satisfy ourselves whether any prejudice had been caused to the defence side, due to non-examination of the I.O. In the case diary, we find that there are mentions about the injury reports of two of the accused. There are evidences of the independent persons, who were exercising some right over the Temple to show that the informant's side had no right over the Temple and they were actually intruders, and had the I.O. been examined in this case, these facts could be taken by the defence from the I.O. We are of the considered view that in the present case, the defence has been vitally prejudiced by the non-examination of the I.O., and the benefit thereof must go to the accused appellants. Even though the injuries on the PW–7 Kailash Rai and PW-1 Rabindra Rai, as also the injuries on the deceased are corroborated by the medical evidence of PW–2 Dr. Syed Wazeuddin and PW-4 Dr. Ajit Kumar Sahay, but the fact remains that prima facie we are satisfied that the prosecution has not come out with true story about the manner and genesis of the occurrence. Syed Wazeuddin and PW-4 Dr. Ajit Kumar Sahay, but the fact remains that prima facie we are satisfied that the prosecution has not come out with true story about the manner and genesis of the occurrence. The materials brought on record by the defence, particularly, Exhibit–A and Exhibit–C, show that informant, along with his deceased brother and other persons, was committing theft / dacoity in the store of the Temple, over which they had no right and possession. The Judgment in the Title Appeals establishes the fact that the defence side were validly exercising their right and possession over the Temple property, and they were well within their right to exercise the right of private defence over the Temple property. 19. For the foregoing reasons, we are of the considered view that the prosecution story is full of doubts and the prosecution has not come out with true story about the manner and genesis of the occurrence, and in the facts of this case, the appellants were entitled at least, to the benefits of doubt. As such, the impugned Judgment of conviction dated 2.5.2006 and Order of sentence dated 5.5.2006, passed by the learned Additional Sessions Judge, FTC-VIII, Giridih, in S.T. No. 66 of 1990, cannot be sustained in the eyes of law, which are hereby, set-aside. The appellants are given the benefits of doubt and they are acquitted of their respective charges. 20. The appellant Arun Hazam, in Cr. Appeal (D.B.) No.1202 of 2006, is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case. The other appellants are already on bail, and as such, they are discharged from the liabilities of their respective bail bonds. 21. Both these appeals are accordingly, allowed. Let the Lower Court Records be sent back forthwith to the Court concerned, along with a copy of this Judgment.