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2017 DIGILAW 1456 (JHR)

Ghura Bhuiyan v. State of Bihar (Now Jharkhand)

2017-08-17

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : Heard learned counsel for the appellants and learned counsel for the State. 2. Appellants are aggrieved by the Judgment of conviction and Order of sentence 20.2.1993, passed by the learned 2nd Additional Sessions Judge, Palamau at Daltonganj, in S.T. No. 193 of 1988, whereby, the appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants were sentenced to undergo R.I. for life for said offence. 3. According to the prosecution case as reveled in the fardbeyan of one Jagdish Mistry, the son of the deceased Ram Prasad Mistry, recorded on 4.8.1987 at 9:30 AM at Sadar Hospital, Daltonganj, the deceased, who was resident of village Pajrikala under Bishrampur Police Station, had gone to Daltonganj Court on 3.8.1987 to attend a case. Thereafter, he returned back at about 6 PM to his village and after changing his cloths, he went to the agriculture field, where his son, the informant, was tending the bulls, where they had some talks and thereafter the father of the informant was returning his home. As soon as, he reached near the Primary School, the informant heard the alarm raised by his father, whereupon, he rushed there and found that the accused Sita Ram Bhuiyan was assaulting his father by farsa and Ghura Bhuiyan and Sarju Bhuiyan were assaulting him by lathi. One more person, namely, Mahabir Singh was there, who was instigating the accused persons to assault his father. The three accused persons assaulted his father by farsa and lathi, injuring his father on his whole body, and there was bleeding injury on his head, caused by farsa. The informant also raised alarm, upon which, several persons assembled there, but the accused persons managed to flee away. The father of the informant was brought to the house and thereafter on a goods train, they brought him to Daltonganj and he was admitted in Daltonganj Sadar Hospital. In the night, at about 1:45 AM, his father died. The informant also raised alarm, upon which, several persons assembled there, but the accused persons managed to flee away. The father of the informant was brought to the house and thereafter on a goods train, they brought him to Daltonganj and he was admitted in Daltonganj Sadar Hospital. In the night, at about 1:45 AM, his father died. The informant has stated in the fardbeyan that they had enmity with Mahabir Singh due to the land dispute, who had also filed a case upon his father and the three other accused persons were having connection with naxalites and they were demanding the licensed gun of his father, which his father had not given to them, due to which, they had assaulted the father of the informant. The said fardbeyan was forwarded by the Officer in-charge of Daltonganj Town police station to Bishrampur Police Station, in whose jurisdiction, the occurrence had taken place, where Bishrampur P.S. Case No. 92 of 1987, corresponding to G.R. No.986 of 1987, was instituted against the accused persons for the offence under Sections 302/34 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet against the three accused persons, who are the appellants before us. 4. After commitment of the case to the Court of Session, the charge was framed against the accused persons for the offence under Sections 302/34 of the Indian Penal Code and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 16 witnesses have been examined on behalf of the prosecution. The defence is the denial of the charge, but no evidence was adduced by the defence. 5. PW–7 Jagdish Mistry is the informant and the son of the deceased. This witness has stated that the occurrence had taken place on 3.8.1997. He was tending the bulls in the agriculture field. At about 6:30 to 7:00 PM, his father came there after returning back from Daltonganj Court. They had some talks and thereafter, his father was returning back to the house. Before about 8:00 PM, the informant heard the alarm raised by his father, whereupon he went there and found Sarju Bhuiyan assaulting his father by farsa. Sita Ram Bhuiyan and Ghura Bhuiyan were assaulting his father by lathi. They had some talks and thereafter, his father was returning back to the house. Before about 8:00 PM, the informant heard the alarm raised by his father, whereupon he went there and found Sarju Bhuiyan assaulting his father by farsa. Sita Ram Bhuiyan and Ghura Bhuiyan were assaulting his father by lathi. Mahabir Singh was also standing there and he was instigating the accused persons to assault his father. His father became unconscious. This witness also raised alarm, whereupon, several persons had assembled there and the accused persons fled away. The injured father of this witness was brought to home and thereafter they came to Daltonganj on a goods train and got his father admitted in Hospital, where, the treatment started, and at about 1:45 AM in the night, his father died. At 9:30 AM in the morning, the fardbeyan of this witness was recorded by the police of Daltonganj Town Police Station, upon which, the witness had put his signature, which he identified, and was marked Exhibit–3. He also identified the signatures of other two witnesses on the fardbeyan, which were marked Exhibit 3/1 and 3/2 respectvely. This witness has stated that his father had a licensed gun and accused Sarju, Sitaram and Ghura were demanding that gun from his father, which was not given to them, due to which, they had enmity with his father. He has also stated that Mahabir Singh had filed a case on his father, due to which, there was enmity. He has identified the three accused persons in the Court. In his cross-examination, this witness has stated that there was a land dispute with Mahabir Singh, and he has also stated that the occurrence had taken place in the moon lit night, otherwise, he could not have identified the accused persons. He has stated that on the date of occurrence, he was working in the agriculture field from morning and he was there up to the time of occurrence. He has also stated that the house of accused Ghura Bhuiyan is near the Primary School, which is the place of occurrence, and from there, the village starts. He has also stated that when he saw the occurrence, the accused persons were assaulting his father by farsa and lathi and more than five assaults were made by farsa. His father sustained injuries on his head, lips, hands and legs and on his whole body. He has also stated that when he saw the occurrence, the accused persons were assaulting his father by farsa and lathi and more than five assaults were made by farsa. His father sustained injuries on his head, lips, hands and legs and on his whole body. The head injury was caused by farsa. Some of the persons, who had assembled at place of occurrence, upon the alarm raised by this witness, tried to apprehend the accused persons, but they could not be apprehended. His father was unconscious, when he was brought to house and hospital. In his cross-examination, he was confronted with his statement made before the police, and he has stated that he had given the statement before the police that Sarju Bhuiyan was armed with farsa and he had assaulted his father by farsa. He has stated that the information about the fact that accused persons were demanding gun from his father was not given to the police. He has denied the suggestion to have given the false evidence. 6. PW–2 Rama Mistri has stated that at the time of occurrence, he was tending his bulls in the agriculture filed at a distance of about 100 yards to the agriculture filed of Jagdish Mistri, who was also tending his bulls in his field. Briksha Mistri (deceased) came there and he talked with Jagdish Mistri and thereafter he went away. When he reached near the school, Sita Ram Bhuiyan, Sarju Bhuiyan and Ghura Bhuiyan also assembled there and Sita Ram Bhuiyan assaulted Briksha Mistri by farsa, whereupon, he fell down and Suraj Bhuiyan and Ghura Bhuiyan assaulted him by lathi. Upon the alarm raised by this witness and Jagdish, other persons came there. This witness has stated that except these three accused persons, no one was there at the place of occurrence. The injured was brought to the house and from there, he was brought to Daltonganj Hospital. He was still conscious and he was also giving statement before the Doctor, but subsequently, he died. He has stated that Briksha Mistri was also known as Ram Prasad Mistri and Ram Briksha Mistri, and he was the father of Jagdish Mistri. In his cross-examination, this witness has stated that the occurrence had taken place in a dark night and except these three accused persons, there was no other person there. 7. He has stated that Briksha Mistri was also known as Ram Prasad Mistri and Ram Briksha Mistri, and he was the father of Jagdish Mistri. In his cross-examination, this witness has stated that the occurrence had taken place in a dark night and except these three accused persons, there was no other person there. 7. PW–3 Narad Mistri is the other son of the deceased, who has also claimed to be an eyewitness of the occurrence and has stated that when he reached the place of occurrence, he saw Sita Ram Bhuiyan assaulting his father by farsa and Sarju and Ghura assaulting his father by lathi and thereafter the accused persons fled away. This witness has also not named Mahabir Singh in his evidence. PW–5 Krishna Mistri, PW–6 Nandlal Chaudhary and PW–8 Dhaneshwar Manjhi have also supported the prosecution case as eyewitnesses to the occurrence, stating that they reached the place of occurrence, upon the alarm raised and saw the accused persons assaulting the deceased. None of these witnesses has named Mahabir Singh to be present there and instigating the three accused persons to kill the deceased. PW–4 Suryadev Baitha had reached the place of occurrence after the occurrence and he had seen the deceased in the injured condition and he was only informed about the occurrence. PW–11 Lakhpati Devi is the wife of the deceased, and she is not the eyewitness to the occurrence. She has stated that Ghura Bhuiyan and Keso Bhuiyan had committed the murder of her husband and upon getting the information about the occurrence, her son had brought her husband in injured condition and had taken him to hospital, where he died. In her cross-examination, she has stated that she had not seen the occurrence. This witness has not named Sarju Bhuiyan in her evidence. She had named Keso Bhuiyan, stating that he is the son of Ghura Bhuiyan, and it appears from the record that the accused Sita Ram Bhuiyan is the son of Ghura Bhuiyan. She has stated in her cross-examination that her son Jagdish Mistri had named only two accused persons, i.e., Ghura Bhuiyan and Keso Bhuiyan before her, and had not informed her anything else. PW–10 Prawanti Kumari is the daughter of the deceased, who was only tendered by the prosecution. 8. PW–9 is Dr. She has stated in her cross-examination that her son Jagdish Mistri had named only two accused persons, i.e., Ghura Bhuiyan and Keso Bhuiyan before her, and had not informed her anything else. PW–10 Prawanti Kumari is the daughter of the deceased, who was only tendered by the prosecution. 8. PW–9 is Dr. Thakur Kanhaiya Dayal Sinha, who had conducted the post-mortem examination on the dead body of the deceased on 4.8.1987 at about 11:30 AM and found the following ante-mortem injuries on the dead body:- I. Lacerated wound 2”x1/2” x bone deep on forehead. II. Lacerated wound 4”x1/2” x bone deep on right parietal bone. On dissection there was subdural haematoma beneath the above injury. III. Lacerated wound 3”x1/2” x bone deep on left temporal bone. On dissection there was crack fracture of left temporal bone and laceration of meninges and subdural haematoma were present. IV. Multiple fracture of both the bones of right forearm. V. Multiple bruises of varying sizes from 6”x1/2” to 2 1/2” x 1/4” on whole of the back starting from neck and both the shoulders up to both buttocks. VI. Lacerated wound 1”x1/4” x mussel deep on back of left elbow joint. VII. Abrasion 1/2”x1/4” on the upper lip. VIII. Lacerated wound 1/2”x1/2”x1/4” on the back of right forearm. He has stated that all the injuries were caused by hard and blunt substance and the death was caused due to shock and hemorrhage caused by the above injuries. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit–4. 9. PW–12 Keshri Prasad Singh is the police officer, who has stated that in August 1987, he was posted in Bishrampur Police Station. On 6.8.1987, the fardbeyan from Town Police Station, Daltonganj, was received, on the basis of which the police case was instituted by the then Officer-In-charge, Shankar Saran Singh, who also took over the investigation. The said I.O. has died. This witness has identified the case diary to be written in the handwriting of the then Officer-In-charge of the Police Station, which was also marked Exhibit–5 in the case. The sketch was also prepared by the said I.O., which was marked Exhibit–6. This witness has given the details of the place of occurrence from the case diary, and has stated that there was no mark of violence present at the place of occurrence, due to excessive rains. The sketch was also prepared by the said I.O., which was marked Exhibit–6. This witness has given the details of the place of occurrence from the case diary, and has stated that there was no mark of violence present at the place of occurrence, due to excessive rains. He has identified the formal FIR, which was earlier marked Exhibit–2 and the fardbeyan, which was earlier marked Exhibit-1. He has stated that the statements of most of the witnesses were recorded by the I.O. of the case and this witness had only submitted the charge-sheet. 10. PW–13 is Arvind Upadhyay, who was posted as ASI at Town Police Station, Daltonganj. He has stated that he had recorded the fardbeyan of the informant on 4.8.1987 at 9:30 AM in the Sadar Hospital, Daltonganj, which he had identified, which was earlier marked Exhibit–1, and the signatures of the informant and the witnesses were earlier marked Exhibit–3 series. He has identified the endorsement on the fardbeyan, which was marked Exhibit–6. In his cross-examination he has stated that he has no knowledge as to when the information was received in the Police Station from hospital, and he has no knowledge as to why, there was delay in recording the fardbeyan. This witness was again recalled and he has identified the inquest report to be in his handwriting and signature, which was marked earlier as Exhibit–9 (by a formal witness). 11. PW–16 is Chandrika Pathak, who is the witness of the FIR and the inquest report of the dead body and he has identified his signatures on both these documents, which were marked exhibits earlier. PW–1 Md. Safik Khan, PW–14 Madan Prasad and PW–15 Jagarnath Singh are the formal witnesses, who have proved the fardbayan, the formal FIR, the sanha entry and the inquest report. As stated earlier, the defence is the denial of the charge, but no evidence was adduced by the defence. 12. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, are absolutely illegal, in as much as, there are discrepancies in the evidence of the witnesses, mainly the evidence of the informant himself, which go to the root of the prosecution case. 12. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, are absolutely illegal, in as much as, there are discrepancies in the evidence of the witnesses, mainly the evidence of the informant himself, which go to the root of the prosecution case. In this connection, it is pointed out by the learned counsel that even though in the FIR, it is alleged that it was the accused Sita Ram Bhuiyan, who was armed with farsa and had assaulted the father of the informant by farsa, but in his evidence, the informant PW-7 has stated that it was the accused Sarju Bhuiyan, who was armed with farsa and had assaulted the deceased by farsa. This witness has also admitted in his cross-examination that more than five assaults were made on the deceased by farsa, but his evidence is not corroborated by the medical evidence, in as much as, not a single injury caused by sharp cutting weapon was found upon the deceased. All the injuries found upon the deceased were caused by hard and blunt substance. It is further submitted by learned counsel that the evidence of the informant is not at all reliable, in as much as, he has also tried to implicate one another person as an accused in the case, who is Mahabir Singh, but no other witness has stated about his presence at the place of occurrence. Even the other son of the deceased, namely, PW–3 Narad Mistri had not stated about the presence of Mahabir Singh at the place of occurrence. Learned counsel accordingly, submitted that no reliance could be placed upon the evidence of the informant for the foregoing reasons. It has also been pointed out by the learned counsel that though the fardbeyan was recorded by the police on 4.8.1987 in the hospital, the same was sent to Bishrampur Police Station only on 6.8.1987, as stated by PW–12 Kesri Prasad Singh, and though the fardbeyan was received in Bishrampur Police Station on 6.8.1987, and the police case was also instituted on the same day, but the FIR was sent to the Magistrate only on 10.8.1987 after the delay of four days. Learned counsel accordingly, submitted that there was delay of two days in sending the fardbeyan from Daltonganj Sadar Police Station to Bishrampur Police Station, and again there was the delay of four days in sending the FIR from Bishrampur Police Station to the Magistrate, which are not at all explained by the prosecution. Learned counsel accordingly, submitted that the impugned Judgment of conviction and Order of sentence passed by the Court below cannot be sustained in the eyes of law. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution witnesses have fully supported the case and their evidence is also corroborated by the medical evidence of PW–9 Dr. Thakur Kahaiya Dayal Singh, who had found eight injuries on the dead body of the deceased, which were the cause of death of the deceased. Learned counsel, however, submitted that though there is delay in sending the fardbeyan from Daltonganj Town Police Station to Bishrampur Police Station and there is delay in sending the FIR also from Bishrampur Police Station to the Court, which are not explained, but in view of the consistent evidences of the eyewitness, it cannot be said that any prejudice had been caused to the accused persons due to these delays. 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. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the delay of two days in sending the fardbeyan from Daltonganj Sadar Police Station to Bishrampur Police Station is not explained. Similarly, the delay of four days in sending the FIR from Bishrampur Police Station to Court of C.J.M. Daltonganj, is again not explained by the prosecution. It is not a case where the evidence of the witnesses are consistent on the point of occurrence. According to the FIR, the allegation of assaulting the deceased by farsa is on Sita Ram Bhuiyan, who is also alleged to be armed with farsa and the other two accused persons were armed with lathi and they also assaulted the deceased by lathi. According to the FIR, the allegation of assaulting the deceased by farsa is on Sita Ram Bhuiyan, who is also alleged to be armed with farsa and the other two accused persons were armed with lathi and they also assaulted the deceased by lathi. However, this version has been changed by the informant Jagdish Mistry, in the Court and he has stated that it was Sarju Bhuiyan, who was armed with farsa and had assaulted his father with farsa, and the other two accused persons, were armed with lathi, and had assaulted his father by lathi. Even in his cross-examination, this witness has asserted that he had given the statement before the police that Suraj Bhuiyan was armed with farsa and had assaulted his father by farsa. Both in the FIR, and in his evidence, the informant has tried to implicate Mahabir Singh as an accused, against whom, no charge-sheet was submitted by the police, and no other eye witness, including PW–3 Narad Mistry, the other son of the deceased, has even named Mahabir Singh. Rather, the evidence of the eye witnesses clearly show that no one else was present at the place of occurrence, except these three accused appellants. Even the mother of the informant PW–11 Lakhpati Devi has stated in her cross-examination, that her son Jagdish Mistri had named only two accused persons, i.e., Ghura Bhuiyan and Keso Bhuiyan, before her and had not informed her anything else. Thus, on the basis of her evidence, not only the presence of Mahabir Singh, rather even the presence of the accused Sarju Bhuiyan, at the place of occurrence, is ruled out. The informant Jagdish Mistry has also admitted in his cross-examination that more than five assaults by farsa were made on his father, but we find from the evidence of PW–9 Dr. Thakur Kanhaiya Dayal Sinha and the post-mortem report proved by him as Exhibit-4, that not a single incised injury was found on the deceased, rather, all the injuries on the deceased were found to be caused only by hard and blunt substance. This apart, the informant and the witnesses have stated that upon getting the assault, the deceased became unconscious and he died in the state of unconsciousness, whereas, PW–2 Rama Mistry has stated that the deceased was still in his senses, and he was giving the statement before the Doctor in the hospital, before he died. This apart, the informant and the witnesses have stated that upon getting the assault, the deceased became unconscious and he died in the state of unconsciousness, whereas, PW–2 Rama Mistry has stated that the deceased was still in his senses, and he was giving the statement before the Doctor in the hospital, before he died. These are some material contradictions in the evidence of the prosecution, which, in our considered view, go to the root of the prosecution case, coupled with the fact that there are unexplained delays, of two days in sending the fardbeyan from Daltonganj Sadar Police Station to Bishrampur Police Station, and of four days in sending the FIR from Bishrampur Police Station to the Court of the C.J.M. Daltonganj. In view of the vital contradictions in the prosecution case and the evidence, the unexplained delays in sending the fardbeyan and the FIR, in our view, have certainly caused serious prejudice to the defence. This apart, no mark of violence was found at the place of occurrence, as admitted by the police officer PW–12 Keshri Prasad Singh. As such, the statement of the informant Jagdish Mistry, either in his fardbeyan, or in his evidence before the Court, is absolutely doubtful and does not inspire confidence. For these reasons, we are of the concerned view, that even though, the witnesses have supported the prosecution case, the appellants were entitled at least to the benefits of doubt, and the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 15. Accordingly, the impugned Judgment of conviction and Order of sentence dated 20.2.1993, passed by the learned 2nd Additional Sessions Judge, Palamau at Daltonganj, in S.T. No. 193 of 1998, are hereby, set-aside. All the three appellants, namely, Ghura Bhuiyan, Sita Ram Bhuiyan @ Sita Bhuiyan and Sarju Bhuiyan, are given the benefits of doubt and they are acquitted of the charge. All the appellants are on bail, and they are discharged from the liabilities of their respective bail bonds. 16. This appeal is accordingly, allowed. Let the Lower Court Records be sent back forthwith along with a copy of this Judgment.