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2017 DIGILAW 2067 (JHR)

Haru Bauri v. State of Jharkhand

2017-12-01

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2017
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction and Order of sentence dated 27th May, 2009, passed by the learned 6th, Additional Sessions Judge, Dhanbad, in S.T. No. 351 of 2004, whereby, the sale appellant has been found guilty and convicted for the offences under Sections 302, 328, 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code, R.I. for 10 years for the offence under Section 328 of the Indian Penal Code and R.I. for 2 years for the offence u/s 201 of the Indian Penal Code. All the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of written report submitted by the Police Officer-Paras Nath Singh (P.W. 6), which shows that an U.D. Case was instituted on the basis of the fardbeyan of one Saraswati Bauri, the wife of the deceased Budhu Bauri, recorded on 21.5.1995, alleging therein that her husband Budhu Bauri was given a small bottle of english liquor by the accused Haru Bauri and Kalpana Bauri, from which her husband took some liquor and soon after that, froth started coming out from his mouth. He was taken to hospital, where he died. It is alleged that the remaining liquor of the bottle was thrown by the accused. On the basis of fardbeyan of the widow of the deceased, an U.D. Case No. 7 of 1995 was instituted and the dead body of the deceased was sent for post mortem examination. The viscera of the deceased was sent for forensic science examination, and in the report of the Forensic Science Laboratory, poison was detected and accordingly, on the basis of the written report of the Police Officer, Paras Nath Singh, the U.D. case was converted into Nirsa P.S. Case No. 106 of 2000 corresponding to G.R. No. 1922 of 2000, for the offences u/ss. 302, 201, 328/34 of the Indian Penal Code, and investigation was taken up. After investigation the police submitted the charge-sheet against the accused facing the trial. 4. 302, 201, 328/34 of the Indian Penal Code, and investigation was taken up. After investigation the police submitted the charge-sheet against the accused facing the trial. 4. Upon commitment of the case to the Court of Session, charge was framed against the sole accused for the offences under Sections 302, 328 and 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, the prosecution has examined 8 witnesses in this case. 5. P.W. 5-Saraswati Bauri, is the wife of the deceased. This witness has stated that her husband died about 12 years ago, and on the date of occurrence they had gone to attend the Shradh of the aunt of the deceased in Village-Bhagabandh. On the next day, Haru Bauri and Kalpana Bauri gave some liquor from a bottle of english liquor to her husband and as soon as her husband consumed the same, froth started coming out from his mouth and he became restless. Her husband was taken to hospital where he died. The remaining liquor in the bottle was thrown by the accused Haru Bauri. She has stated that Haru Bauri was apprehended by the villagers, but by the time the police arrived, he managed to flee away. This witness has also stated that Haru Bauri was the grandson of the brother-in-law (sister's husband) of her husband. She has stated that the father of Haru Bauri had died who was working in a colliery, and her husband was likely to get a job at his place, due to which there was enmity between the parties for which the occurrence had taken place. She has identified the accused in the Court. In her cross-examination, she has stated that she had asked her husband not to take liquor, but he said that the grandson was offering the english liquor and he took some liquor. She has denied the suggestion of giving false evidence. 6. P.W.1-Bamapado Bauri, P.W.-2 Ram Chandra Bauri, P.W. 3-Akash Bauri and P.W. 4-Niran Bauri, are only the hearsay witnesses to the occurrence, stating that they were informed by the wife of the deceased that the liquor was given to the deceased by accused Haru Bauri and Kalpana Bauri, consuming which, he had died. 7. 6. P.W.1-Bamapado Bauri, P.W.-2 Ram Chandra Bauri, P.W. 3-Akash Bauri and P.W. 4-Niran Bauri, are only the hearsay witnesses to the occurrence, stating that they were informed by the wife of the deceased that the liquor was given to the deceased by accused Haru Bauri and Kalpana Bauri, consuming which, he had died. 7. P.W. 6-Paras Nath Singh, is the informant Police Officer in the case, who has proved the written report to be in his pen and signature, which has been marked as Ext.-1. He has stated that the U.D. Case was converted into the police case after getting the FSL report. 8. P.W. 7-Rabindra Kumar Singh is the I.O. of the case. This witness has also stated that this police case was instituted upon getting the viscera report in U.D. Case No.7 of 1995, from which it appeared that the deceased had died due to poisoning. He recorded the re-statement of the informant and he had also visited the place of occurrence during the investigation of U.D. Case, and he has given the details of the same. He has stated that the dead body was sent for post mortem examination and upon getting the post mortem report and the FSL report, this case was instituted. He has identified two signatures on the FSL report which were marked as Ext.-4 series. He has denied the suggestion of making faulty investigation. 9. P.W. 8-Pramod Kumar Jha is the retired Assistant Director of FSL, Patna, who had examined the viscera of the deceased which was received in a sealed cover. He has stated that Aluminium Phosphite along with Ethyl Alcohol was detected in the brown fluid which was sent for examination. He has stated that the Aluminium Phosphite is commercially known as Celphas, which is a severe gastro-intestinal irritant and is highly poisonous, while the Ethyl Alcohol is intoxicating ingredient of all alcoholic beverages. He has proved the FSL report, which has been marked as Ext.-5. In his cross-examination he has admitted that on the FSL report, he had not obtained the signatures of two persons, who had assisted him in the examination of the viscera. 10. The statement of the accused was recorded u/s 313 of the Cr.P.C., wherein he has denied the evidence against him. 11. In his cross-examination he has admitted that on the FSL report, he had not obtained the signatures of two persons, who had assisted him in the examination of the viscera. 10. The statement of the accused was recorded u/s 313 of the Cr.P.C., wherein he has denied the evidence against him. 11. Learned counsel for the appellant, who has been appointed through High Court Legal Services Committee, giving legal aid to the appellant, has submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law, in as much as, the inquest report and post mortem report have not been proved in the case. Learned counsel submitted that the deceased was related to the accused appellant and even though in the evidence it has come that there was enmity for getting the service after the death of the father of the accused, but, this fact has not been mentioned in the written report. It is also submitted that even the fardbeyan of the informant in the U.D. Case has not been proved by the prosecution. Learned counsel accordingly, submitted that in the facts of this case the appellant is entitled to benefits of doubt. 12. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the wife of the deceased, P.W. 5-Saraswati Bauri, has fully supported the prosecution case stating that it was this appellant who had given the spurious liquor to her husband from the bottle of english liquor, which proved fatal to her husband and this fact is also supported by the FSL report proved as Ext.-5 by P.W.8-Pramod Kumar Jha. 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. 13. Having heard learned counsels for both the sides and upon going through the record, we find that the original fardbeyan of the widow of the deceased, on the basis of which the U.D. Case was instituted, has not been brought on record and proved in the case. Even the Doctor conducting the post mortem examination has not been examined and the post mortem report has not been proved in the case. Even the inquest report of dead body has not been proved by the prosecution. Even the Doctor conducting the post mortem examination has not been examined and the post mortem report has not been proved in the case. Even the inquest report of dead body has not been proved by the prosecution. Though the P.W. 5-Saraswati Bauri has stated that this accused had given the liquor from a bottle of english liquor to the deceased, but there is no evidence on the record to show that any poison was mixed by the accused in the liquor. There is no evidence on record to show that the appellant was engaged in brewing liquor, so that it could be inferred that spurious liquor was manufactured by the appellant. The cause of dispute between the parties, as deposed by the informant in her evidence, that her husband was likely to get the job at the place of deceased father of the accused, does not inspire confidence, as there was no occasion for the deceased to get the said job. In the facts of the case, it cannot be ruled out that the appellant could have purchased the spurious liquor unknowingly, and per chance, instead of consuming the liquor himself, he first offered the liquor to the deceased. He might have consumed the liquor before offering it to the deceased, and in that case he himself might have become the victim. 14. For the aforesaid reasons, we are of the considered opinion, that even if the eyewitness P.W. 5-Saraswati Bauri has supported the fact that the poisonous liquor was given to her husband by the appellant, the appellant is entitled to the benefits of doubt, in absence of any evidence on record that the appellant had the knowledge that the liquor was spurious or poisonous. 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 and Order of sentence dated 27th May, 2009, passed by the learned 6th Additional Sessions Judge, Dhanbad, in S.T. No.351 of 2004, convicting and sentencing the appellant Haru Bauri for the offences u/ss. 302, 328 and 201 of the Indian Penal Code, are hereby, set aside. The appellant is given the benefits of doubt, and he is acquitted of the charges. 302, 328 and 201 of the Indian Penal Code, are hereby, set aside. The appellant 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 this Judgment, we must record that we have been given able assistance by the learned counsel for the appellant Sri Lukesh Kumar, who has been appointed through the High Court Legal Services Committee. We direct the Secretary, High Court Legal Services Committee, to make the payment and the prescribed remuneration to the learned counsel Sri Lukesh Kumar. Let a copy of this order be sent to the Secretary, High Court Legal Services Committee, for needful. 17. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. Consequently, the interlocutory application filed for early hearing of this criminal appeal also stands disposed of.