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2017 DIGILAW 1564 (JHR)

Dhotan Bhuian v. State Of Jharkhand

2017-08-30

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT H.C. Mishra and Mr. Ananda Sen, JJ. Heard learned amicus curiae appointed by this Court for the appellant, and learned counsel for the State. 2. The sole appellant is aggrieved by the Judgment of conviction dated 15.12.2005 and Order of sentence dated 21.12.2005, passed by the learned Sessions Judge, Chatra, in Sessions Trial No. 75 of 2005, whereby, the appellant has been found guilty and convicted for the offence under Sections 302 & 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code and further imprisonment for one year and a fine of Rs. 5000/- for the offence under Section 201 of the Indian Penal Code. Both the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant, Durgi Devi, the sister of the deceased Faguni Devi, who was married to the accused-appellant Dhotan Bhuian. Both the sisters were married in the same village, namely, Chandar Pakaria, in the District of Chatra, and their houses were also situated nearby. The fardbeyan of the informant was recorded in Leda Semara forest on 14.10.2004, where the dead body of the deceased was found, though it is stated by the Police Officer recording the fardbeyan, that it was recorded in the Police Station. The informant has stated that on 14.10.2004, in the early morning at about 3.00 A.M. she went to wake up her sister Faguni Devi for going towards the forest for easing themselves, when she found her sister lying dead in the house. She asked her brother-in-law as to how her sister had died, but he did not reply anything. The informant also found that there were marks of assaults on the dead body of the deceased. She stated that in the previous night, i.e., 13.10.2004 at about 09.30 P.M. her brother-in-law was assaulting her sister, and hearing the noise, she had gone there and had forbidden him from assaulting her. She has alleged that the accused was in a habit of assaulting her sister and used to say that he will kill her. She stated that in the previous night, i.e., 13.10.2004 at about 09.30 P.M. her brother-in-law was assaulting her sister, and hearing the noise, she had gone there and had forbidden him from assaulting her. She has alleged that the accused was in a habit of assaulting her sister and used to say that he will kill her. Upon seeing the dead body, she went to inform her another brother-in-law Shankar Bhuian, upon which Shankar Bhuian also came there, but they found that by that time the house was locked and nobody was there, even the dead body was not found there. Thereafter they went out in search of the dead body and found the dead body in Leda Semara forest, concealed with leaves, and the accused had fled away. In the meantime, the police came there and her fardbeyan was recorded, wherein she alleged that the accused had committed the murder of her sister assaulting her by some hard and blunt substance. On the basis of the fardbeyan, Chatra Sadar P.S. Case No. 229 of 2004, corresponding to G.R. No. 777 of 2004, was instituted for the offences under Sections 302 & 201 of the Indian Penal Code, against the accused Dhotan Bhuian, and investigation was taken up. After investigation, the police submitted the charge sheet against the accused. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 & 201 of the Indian Penal Code, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, eight witnesses were examined on behalf of the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased and the Investigating Officer. The defence is the denial of the charge. No witness was examined by the defence. 5. P.W.-4 Durgi Devi is the informant in the case, who has stated that the occurrence had taken place about eight months ago. The accused had assaulted (her sister) in the night of Wednesday and she went there and found her sister Faguni dead. She further stated that she went to inform Shankar Bhuian, and in the meantime, the accused concealed the dead body of the deceased in the forest. The accused had assaulted (her sister) in the night of Wednesday and she went there and found her sister Faguni dead. She further stated that she went to inform Shankar Bhuian, and in the meantime, the accused concealed the dead body of the deceased in the forest. She informed the police whereupon the police came and recovered the dead body and sent it for post-mortem examination. She has stated that her statement was recorded on which she had put her thumb impression. She has identified the accused the Court. In her cross-examination, this witness has stated that at the place of occurrence there was lot of blood. She has stated that Faguni used to go to forest for fetching wood which she used to sell in the town, and on the day of occurrence also, she had gone to the forest for fetching the wood. She has also stated in her cross-examination that when the police came there, she was scolded by the police that she herself had committed the murder. She has also admitted in her cross-examination that the deceased had not died in her presence, rather when she went to wake her up, she found her dead. 6. P.W.-1 is Naresh Bhuian, who has stated that the occurrence had taken place at about 09.00 P.M. in the night, when Faguni was assaulted by her husband and the sister of Faguni had forbidden him, and in the morning the deceased died. He has also stated that the deceased was assaulted by Lathi and Danda. The police had recovered the dead body near the tree. He has identified the accused in the Court. In his cross-examination, this witness has stated that at the time of occurrence, he was in his house and he was informed by Durgi Devi about the death of the deceased. He came to know about the death of the deceased in the morning at about 9.00 A.M. 7. P.W.-2 Jitan Bhuian and P.W.-3 Shankar Bhuian are the hearsay witnesses and they have stated that they were informed about the occurrence by the informant. 8. P.W.-5 Bhola Yadav has only been tendered, whereas P.W.-7 Shambhu Prasad has turned hostile. 9. P.W.-8 Dr. P.W.-2 Jitan Bhuian and P.W.-3 Shankar Bhuian are the hearsay witnesses and they have stated that they were informed about the occurrence by the informant. 8. P.W.-5 Bhola Yadav has only been tendered, whereas P.W.-7 Shambhu Prasad has turned hostile. 9. P.W.-8 Dr. Bhuneshwar Prasad Singh, is the Medeical Officer, who had conducted the post-mortem examination on the dead body of deceased on 14.10.2004 at about 2.30 P.M., and had found the following ante-mortem injuries on the dead body: - (a) Multiple bruises over face, cheek and chin. Each were 2" x 2 c.m. blue black colour. (b) Multiple bruises over right scapular region, each were 7" x 3 c.m. blue black colour. (c) Multiple bruises mid axillary line and lumber region (backbone), each were 3-4" x 3 c.m. blue black colour. (d) Bruise over medial side of right eye 5" x 2" blue black colour. (e) Bruise over frontal region scalp 7" x 3 c.m. blue black colour. On exploration there was fracture of frontal bone of left side. Subdural clot in frontal area 5 x 2 c.m. redish black colour. On opening chest wall and abdomen heart was found empty from both sides, lever mild congested, lung mild congested, spleen ruptured, kidney mild congested. Stomach contained paste like material. Huge amount of blood in abdominal cavity. This witness has stated that the death was caused due to severe haemorrhage and shock (due to injuries) caused by hard blunt substance. This witness has identified the post-mortem report to be in his pen and signature, which was marked as Ext-4. 10. P.W.-6 Yugal Kishore Singh is the Investigating Officer of the case. He has stated that on 14.10.2004, he was posted at Chatra Police Station and he received the copy of the F.I.R and the inquest report. He has identified the fardbeyan of the informant to be his pen and signature, on which the thumb impression of the informant and a witness was taken, which was marked as Ext.-1. He has also identified the endorsement on the fardbeyan, which was marked as Ext. 1/1. This witness has also proved the formal F.I.R., which was marked as Ext.-2 and has also proved the inquest report to be in his pen and signature, which was marked as Ext.-3. He has stated that he recorded the restatement of the informant and also inspected the place of occurrence. 1/1. This witness has also proved the formal F.I.R., which was marked as Ext.-2 and has also proved the inquest report to be in his pen and signature, which was marked as Ext.-3. He has stated that he recorded the restatement of the informant and also inspected the place of occurrence. The first place of occurrence is the house of the accused and he did not seize anything from this place of occurrence, as nothing incriminating could be found at this place of occurrence. He recorded the statements of the other witnesses. The other place of occurrence is the Leda Semara forest, where the dead body of the deceased was recovered, concealed with leaves and he prepared the inquest report. He received the post-mortem report and submitted charge sheet in the case. He has identified the accused in the Court, stating that he had arrested him. In his cross-examination, this witness has stated that the distance between the first place of occurrence and the second place of occurrence is 1 K.M. At the places of occurrence, he did not find any weapon of occurrence. He has denied the suggestion to have made the faulty investigation. 11. On the basis of the evidence on record the accused-appellant was found guilty, convicted and sentenced for the offences as aforesaid. 12. Learned amicus curiae appearing for the appellant 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, in as much as, the prosecution has not been able to prove the charge against the appellant beyond all reasonable doubts. It is submitted that there is no eyewitness to the occurrence of murder and the dead body of the deceased was not found in the house, rather it was found in the forest. It is only the interested witness P.W.-4 Durgi Devi, the sister of the deceased, who has stated that she had seen the dead body in the house. No one else had seen the dead body in the house. It is submitted that the Investigating Officer P.W.-6 Yugal Kishore Singh had not found any incriminating circumstance in the house, so as to prove the fact that there was some scuffle between the deceased and the accused in the house, or that the deceased was murdered in the house. No one else had seen the dead body in the house. It is submitted that the Investigating Officer P.W.-6 Yugal Kishore Singh had not found any incriminating circumstance in the house, so as to prove the fact that there was some scuffle between the deceased and the accused in the house, or that the deceased was murdered in the house. Even no blood stains were found in the house, though P.W.-4 Durgi Devi has stated in her cross-examination that lot of blood was there in the house. It is also submitted that even the weapon of the occurrence has not been recovered in the case. It is further submitted that it is an admitted fact that the deceased used to go to forest and on the day of occurrence also, she had gone to the forest for fetching wood and accordingly, it cannot be said that the accused had committed the murder of the deceased. Learned amicus curiae accordingly, submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law and it is a fit case in which the appellant ought to have been given at least the benefits of doubt. 13. Learned counsel appearing for the State, on the other hand, has opposed the submissions made by the learned amicus curiae and submitted that the informant P.W.-4 Durgi Devi has stated that she had seen the accused assaulting the deceased in the night and had forbidden him from assaulting the deceased, and in the morning she saw the dead body in the house, which was subsequently removed from the house, when she had gone to inform Shankar Bhuian, her other brother-in-law, about the occurrence. It is also submitted that even P.W.-1 Naresh Bhuian has also supported the fact that in the night the accused had assaulted his wife. The ocular evidence of these witnesses are corroborated by the medical evidence of P.W.-8 Dr. Bhuneshwar Prasad Singh, who had found the ante mortem injuries on the dead body of the deceased, caused by hard and blunt substance. Learned counsel accordingly, submitted that the prosecution has been able to prove the charges against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed against the appellant by the Trial Court below. 14. Learned counsel accordingly, submitted that the prosecution has been able to prove the charges against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed against the appellant by the Trial Court below. 14. Having heard learned counsels for both the sides and upon going through the record, we find that all the witnesses are only hearsay on the point of occurrence of murder. Even the informant P.W.-4 Durgi Devi is not the eyewitness to the occurrence of murder, rather she has stated that she had seen the accused assaulting the deceased in the night when she had forbidden the accused from assaulting her sister. She has admitted in her cross-examination that the deceased had not died in her presence, and there was lot of blood in the house. However, the Investigating Officer has specifically stated in his evidence that nothing incriminating was found at the house of the accused. Indeed, in the post-mortem examination, no bleeding injury was found on the deceased, which shows that this statement of the informant is false. There is no recovery of any weapon of offence from any place of occurrence. We also find from the record that only the informant P.W.-4 Durgi Devi has stated that she had seen the dead body in the house, whereas the dead body was recovered from the forest. No other witness has stated that dead body was seen in the house also. We have taken a look into the inquest report of the dead body, which was proved as Ext.-3, as also the post-mortem report, which was proved as Ext.-4. The inquest report clearly shows that the dead body was found in the forest in naked condition and this fact is also corroborated by the post-mortem report Ext.-4, which shows that the dead body was in the naked condition. It is not the case in the entire prosecution story that the dead body was found in naked condition. The inquest report clearly shows that the dead body was found in the forest in naked condition and this fact is also corroborated by the post-mortem report Ext.-4, which shows that the dead body was in the naked condition. It is not the case in the entire prosecution story that the dead body was found in naked condition. The recovery of dead body in the naked condition, and that too in the forest, which, according to the evidence of the P.W.-6 Yugal Kishore Singh, the Investigating Officer, was situated at a distance of about 1 K.M., from the house of the accused, in our considered view, makes the prosecution case very doubtful that the dead body was seen by the informant P.W.-4 Durgi Devi in the house. It is an admitted case by the informant that the deceased used to go to forest for fetching wood, and on the day of occurrence also, she had gone to the forest for fetching the wood, and in view of the fact that her dead body was found in naked condition in the forest, makes the implication of the accused, who is the husband of the deceased very doubtful. In the facts of this case, we find that the prosecution has not been able to prove the charge against the accused appellant beyond all reasonable doubts and it is a fit case, in which, the accused appellant Dhotan Bhuian ought to have been given the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 15. For the foregoing reasons, the impugned Judgment of conviction dated 15.12.2005 and Order of sentence dated 21.12.2005, passed by the learned Sessions Judge, Chatra, in S.T. No. 75 of 2005, are hereby, set aside. The appellant Dhotan Bhuian is given the benefits of doubt and he is acquitted of the charges. The appellant is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 16. Before parting with the Judgment, we wish to record that we have been given very able assistance in this case by Mr. Hardeo Pd. Singh, learned amicus curiae. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus auriae. 16. Before parting with the Judgment, we wish to record that we have been given very able assistance in this case by Mr. Hardeo Pd. Singh, learned amicus curiae. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus auriae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, Ranchi, for the needful. 17. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.