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2018 DIGILAW 139 (JHR)

Arbind Thakur v. State of Bihar (Now Jharkhand)

2018-01-16

ANANDA SEN, H.C.MISHRA

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JUDGMENT : H.C. MISHRA, J. In Criminal Appeal (DB) No. 93 of 1992, originally there were 12 appellants, out of whom, six appellants have died and by order dated 19.11.2010, the said appeal stood abated as against them. 2. Heard learned counsel for the surviving appellants in both these appeals and learned counsel for the State, as also learned counsel for the informant. 3. The appellants are aggrieved by the judgment of conviction dated 25th April, 1992 and order of sentence dated 30th April, 1992, passed by the learned 2nd Addl. Sessions Judge-II, Godda, in Sessions Trial No. 311 of 1986/9 of 1991, whereby, out of thirteen accused persons, facing the trial. the accused Srikant Thakur, Kaifu @ Kailash Thakur (both since dead) and Naresh Roy have been found guilty and convicted for the offences under Sections 302, 307/149, 324/149, 323/149 and 148 of the Indian Penal Code, accused Janardan Thakur has been found guilty and convicted for the offences under Sections 307, 302/149, 324/149, 323/149 and 148 of the Indian Penal Code, accused Hemlal Soren (since dead) and Manager Rai have been found guilty and convicted for the offences under Sections 324, 302/149, 307/149, 323/149 and 148 of the Indian Penal Code and the accused persons, Arbind Thakur, Bishu Rai(since dead), Govind Rai, Sitaram Rai, Kaleshwar Rai (since dead), Chamru Rai and Muni Lal Soren (since dead), have been found guilty and convicted for the offences under Sections 147, 302/149, 307/149, 324/149 and 323/149 of the Indian Penal Code. Upon hearing on the point of sentence, the accused appellants convicted for offences under Sections 302. 302/149 and 307/149 of the Indian Penal Code, have been sentenced to undergo rigorous imprisonment for life, accused appellants convicted for the offence under Section 324 of the Indian Penal Code have been sentenced to undergo simple imprisonment for three years and the accused appellants convicted for the offence Section 147 of the Indian Penal Code have been sentenced to undergo simple imprisonment for one year. However, no separate sentence has been passed for the offences under Sections 324/149.323/149 and 148 of the Indian Penal Code. All the sentences were directed to run concurrently. 4. However, no separate sentence has been passed for the offences under Sections 324/149.323/149 and 148 of the Indian Penal Code. All the sentences were directed to run concurrently. 4. The prosecution case was instituted on the basis of first information report lodged by informant Singhasan Thakur on 31.7.1983, at about 1.00 p.m. at Mahagama Police Station in the district of Godda, Wherein, he has stated that on the same day, he along with other members of the prosecution side, were ploughing their field at about 9.00 a.m., when all the fifteen named accused persons, including the accused persons facing the trial, came there variously armed with bombs and other weapons and upon the order given by accused Janardan Thakur, accused Srikant Thakur assaulted Ramchandra Thakur, the uncle of the informant, by bomb, whereupon, he fell down in the field itself. Thereafter, accused Kailu Thakur and Moti Rai assaulted him by lathi and Naresh Rai assaulted him by bhala, causing the death of his uncle at the spot. He has also stated that other accused persons assaulted and injured Ramdhan Thakur, Haldhar Thakur, Sitaram Thakur and Rajendra Thakur by lathi, sword, gamsa, bow and arrow, etc., who were also working in the field. On the basis of the information given by the informant, Mahagama P.S. Case No. 40 of 1983 corresponding to G.R. No. 468 of 1983, was instituted for the offences under Sections 147, 148, 149, 323, 324, 307, 302 of the Indian Penal Code, and Sections 3 and 5 of the Explosive Substance Act, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 5. Upon commitment of the case to the Court of Session, charges were framed against the accused persons for the offences under Sections 302, 302/149, 307/149, 324/149, 323/149, 148 and 147 of the Indian Penal Code, and upon the accused persons’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, twelve witnesses have been examined on behalf of the prosecution and one witness has been examined on behalf of the defence. The defence has also proved certain documents, which are the certified copies of the judgments and orders in different cases, as also the certified copy of a Deed of Adoption, which were marked exhibits. 6. PW 9 Singhasan Thakur is the informant in the case. The defence has also proved certain documents, which are the certified copies of the judgments and orders in different cases, as also the certified copy of a Deed of Adoption, which were marked exhibits. 6. PW 9 Singhasan Thakur is the informant in the case. This witness has stated that the occurrence had taken place on 31.7.1983, when he was working in his field along with Ramchandra Thakur, Ramjee Thakur, Haldhar Thakur, Ramdhan Thakur, Rajendra Thakur and Vimal Thakur. At about 9.00 a.m., all the accused persons named in the deposition, including the appellants, came there and on the order given by accused Janardan Thakur, accused Srikant Thakur assaulted Ramchandra Thakur by bomb, due to which he fell down. Thereafter Kailu Thakur and Moti Rai assaulted him by lathi and accused Naresh Rai assaulted him by bhala, causing his death at the spot. Rajendra Thakur, Sitaram Thakur, Ramdhan Thakur, Haldhar Thakur were also badly injured in the occurrence. Sitaram was assaulted by the accused Hemlal Soren by arrow, Rajendra was assaulted by accused Manager Rai by arrow, Ramdhan was assaulted by accused Jagdish Rai by garasa and Haldhar was assaulted by accused Janardan Thakur by sword. The injured were taken to hospital, whereas the deceased was left at the place of occurrence itself, and this witness went to inform the police. He lodged the first information at about 1.00 a.m., which was read over to him and finding the same true, he put his signature. He has identified the FIR, which was earlier marked as Exhibit-3, stating that this contains his signature. This witness has identified the accused persons present in the Court and has claimed to identify the other accused persons, who were not present in the Court on that date. He has stated that the accused Jagdish Rai had died. In his cross-examination, this witness has denied the suggestion that he had assaulted Manager Rai by arrow and has stated that he had not seen any injury on Manager Rai. This witness has also stated that the land, on which the occurrence had taken place, was recorded in the name of Matuki Thakur. He has also stated that Matuki Thakur died issue-less. This witness has also stated that the land, on which the occurrence had taken place, was recorded in the name of Matuki Thakur. He has also stated that Matuki Thakur died issue-less. He has stated that Matuki Thakur had not adopted Janardan Tnakur as his son, but again he has stated that he had challenged the said adoption in the Court, but the case was decided against him and he has filed the appeal against the said order. He has denied the suggestion that no appeal has been filed against that order. This witness has also admitted in his cross-examination that in the year 1979, Janardan Thakur had got the land question mutated in his favour, against which also, he has filed the appeal. He has admitted that no rent was being paid by this witness since 1979 and has also admitted that Janardan Thakur is making payment of rent of the said land. This witness has also denied the knowledge that Janardan Thakur, being the adopted son of Matuki Thakur, had filed a case against his grandfather and granduncle and one Mahadeo, for looting away the paddy crops from the said land, in which, they were convicted. He has also admitted that he is an accused in a case for the offence under Section 307 of the Indian Penal Code for assaulting Dhaneshwar Thakur, the eldest son of Janardan Thakur, which, occurrence had taken place prior to the present occurrence. This witness has also stated that the accused persons hurled 4 to 5 bombs, due to which, there was a lot of smoke all around and after the smoke cleared, he saw that Ramchandra Thakur was lying dead. He has also admitted that after the present occurrence, there was a proceeding under Section 144, Cr.P.C., against both the parties with respect to file same land. He has denied the suggestion that in order to usurp the land in dispute, the prosecution side had assaulted the accused persons, in which, Srikant Thakur and Manager Rai were also injured and the accused persons have been falsely implicated. 7. PW 1 Ramdhan Thakur, PW 2 Sitaram Thakur, PW 3 Rajendra Thakur, and PW 6 Haldhar Thakur have also supported the prosecution case and stated that they were also injured in the occurrence. 7. PW 1 Ramdhan Thakur, PW 2 Sitaram Thakur, PW 3 Rajendra Thakur, and PW 6 Haldhar Thakur have also supported the prosecution case and stated that they were also injured in the occurrence. PW 1, PW 2 and PW 6 have stated that bombs were hurled by accused Arbind Thakur and Srikant Thakur, which hit Ramchandra Thakur, who fell down and all other accused persons assaulted Ramchandra Thakur, due to which he died. PW 3 Rajendra Thakur has stated that Srikant Thakur had assaulted Ramchandra Thakur by bomb, whereupon he fell down and thereafter all the accused persons fled away. These witnesses have also stated about the assaults made by other accused persons. In his cross-examination, PW 1 Ramdhan Thakur has stated that the land in question stood recorded in the name of Matuki Thakur, and Janardan Thakur, the adopted son of Matuki Thakur, had got his name mutated with respect to the land in dispute and was also making payment of rent of the land. He has also stated that he had not filed any objection to the said mutation, but has filed an appeal against the order of mutation. This witness has also admitted in the cross-examination that the occurrence had taken place due to the dispute between the parties for the same land and both the parties were in possession of the land in question. PW 2 Sitaram Thakur has stated in his cross-examination that neither he, nor Janardan Thakur got the land mutated. He has denied the knowledge that Janardan Thakur had got the land mutated, against which. the appeal has also been dismissed. He has also denied the knowledge that Matuki Thakur had adopted Janardan Thakur as his son and has denied the suggestion that he was concealing these facts knowingly. This witness has stated in his cross-examination that as soon as Ramchandra Thakur was hit by bomb, he died at the spot. PW 3 Rajendra Thakur has denied any knowledge about the details of the land in dispute. PW 6 Haldhar Thakur has also stated that Matuki Thakur died issueless, but he has denied the knowledge that Janardan Thakur was adopted son of Matuki Thakur. He has also denied the knowledge that in the capacity of adopted son of Matuki Thakur, Janardan Thakur had filed a case for looting away paddy crops, in which, the father of this witness was convicted. He has also denied the knowledge that in the capacity of adopted son of Matuki Thakur, Janardan Thakur had filed a case for looting away paddy crops, in which, the father of this witness was convicted. But he has admitted that he had filed the case for cancellation of the adoption deed of Janardan Thakur and has admitted that Janardan Thakur had got the land of Matuki Thakur mutated in his favour. He has also stated that prior to this occurrence, one dacoity case was also filed upon him and there is enmity between the parties from much before. He has also admitted that the accused persons used to plough the land in his absence, and had wrongly got the land mutated in their favour and even the rent receipts are being issued to Janaroan Thakur, who is paying the rent of the said land. 8. PW 7 Surya Mohan Sah has stated that on the date of occurrence, there was a quarrel between both the sides, in which, Ramchandra Thakur was killed by bomb. Others were also injured. In his cross-examination, this witness has stated that accused Manager Rai was also injured by arrow in the said occurrence. This witness has, however, admitted that he is an accused in a murder case of his own daughter, in which, the brother of accused Srikant Thakur is a witness. 9. PW 4 Ramjee Thakur and PW 5 Jawahar Prasad Bhagat, are the witnesses to seizure list, on which, they identified their signatures and the seizure list was marked Exhibit-I. The seizure list related to seizure of bloodstained soil, grass, two tin boxes of Kalash mark Zarda, Sutli, two arrows and, iron nails. PW 4 is also a witness to the inquest report of the dead body, which on his identification marked Exhibit-2. 10. PW 11 is Dr. Raghvendra Prasad Choudhary, who conducted the post-mortem examination on the dead body of the deceased on 1.8.1983 and had found the following ante-mortem injuries on the dead body of the deceased :- (i) Penetrating incised wound on the left leg just below knee joint on the dorsal surface in the size of 1” x 1/2” x l”. (ii) Abrasion on the right leg just below the knee joint 2” x l”. (iii) Penetrating incised wound on the left side of the back 1” x 1/2” x 1/2”. (ii) Abrasion on the right leg just below the knee joint 2” x l”. (iii) Penetrating incised wound on the left side of the back 1” x 1/2” x 1/2”. (iv) Multiple bruises of different sizes on the back in reddish and blackish colour. (v) Multiple bruises in different sizes on neck reddish and black colour. (vi) Multiple bruises on the chest in different sizes reddish and blackish colour. On dissection internal injuries are found as follows :- (i) Fracture of 4, 5, 6 ribs on the right side of chest at mid clavicler line. (ii) Fracture of 6, 7, 8 ribs on the left side of chest anterior axillary line. (iii) Both lungs ruptured and lacerated, blood clot in the thoracic cavity. (iv) Heart empty. Brain - lacerated contained free blood and also blood clot. This witness has stated that all the injuries were grievous in nature, except injury Nos. (i) and (ii), which were simple caused by sharp cutting and pointed weapon. Rest injuries were caused by hard and blunt substance. He has also stated that cause of death was due to shock and hemorrhage due to the above injuries. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-4. In his cross-examination, this witness has stated that he did not find any particle of glass or nail or bomb splinters etc., and no burn injury caused by bomb was found on the deceased. 11. PW 12 Bal Krishna Das is a formal witness, who was posted as Compounder in Primary Health Centre, Mahagama, and has proved the injury reports of Rajendra Thakur, Haldhar Thakur, Ramdhan Thakur and Sitaram Thakur, to be in the handwriting and signature of Dr. B.P. Sinha of the said hospital. He has stated that due to his heart ailment, Dr. B.P. Sinha was not in a position to come to the Court to depose. 12. PW 8 Madan Mohan Sharma and PW 10 Jagdish Chandra Yadav are the part Investigating Officers of the case. PW 8 has stated that he got the charge of investigation of the case on 29.11.1983 and thereafter he recorded the statements of some of the witnesses. He also visited the place of occurrence on 16.12.1983. He has also proved the seizure list, which was marked as Exhibit-l and has produced the material exhibits, which were two arrows, marked as material Exhibit-II. He also visited the place of occurrence on 16.12.1983. He has also proved the seizure list, which was marked as Exhibit-l and has produced the material exhibits, which were two arrows, marked as material Exhibit-II. The tin boxes of Kalash mark Zarda, Sutli, stone and glass pieces and iron nails were marked as material Exhibit-III. He had submitted the charge-sheet in the case. In his cross-examination, this witness has stated that the material exhibits were not seized by him and were never sent for forensic examination. PW 10, is a retired Police Sub-Inspector, has stated that he was not present in the Police Station on 31.7.1983, but when he returned back, he learnt about the occurrence. He had also ‘gone to the place of occurrence and had found the bloodstains at the place of occurrence, but the place of occurrence was already inspected by ASI V.N. Singh, who had made the seizures. He has stated that he had seen those material Exhibits at the place of occurrence also, which were bloodstained soil and grass, tin boxes of Kalash mark Zarda, sutli, stones, glass, nails etc. This witness has also stated that he had searched the accused persons, but he could not find the accused persons, except Manager Rai, who was injured by arrow and was sent to hospital by him. He has also proved the inquest report to be in the handwriting and signature of ASI V.N. Singh, which was earlier marked Exhibit-2. This witness has stated that he had not seen the dead body. 13. The statements of the accused persons were recorded under Section 313 of the Cr PC. wherein they have denied, the evidence against them. The defence has examined one witness, who is DW 1 Laxmi Prasad Yadav and he has proved certain rent receipts, which were marked Exhibit-A series. The defence has also proved the certified copies of certain documents, which were the judgments, orders and decree passed in their favour, and there is one certified copy of Deed of Adoption, which was marked Exhibit-F. 14. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence passed by the trial Court below cannot be sustained in the eyes of the law, inasmuch as, the prosecution has not been able to bring home the charges against the appellants beyond all reasonable doubts. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence passed by the trial Court below cannot be sustained in the eyes of the law, inasmuch as, the prosecution has not been able to bring home the charges against the appellants beyond all reasonable doubts. It is submitted that admittedly there is land dispute between the parties and it is also an admitted position that the land in question was recorded in the name of one Matuki Thakur, who died issueless and accused Janardan Thakur was taken in adoption by him. Learned counsel has also submitted that the land in question was mutated in favour of Janardan Thakur and though the witnesses have denied this knowledge, but they have admitted in their cross-examination that they have challenged the adoption of Janardan Thakur, as also the order of mutation in his favour. It is also submitted that paying rents by accused Janardan Thakur is also an admitted fact by the prosecution witnesses and the defence has also brought on record the rent receipts, which are Exhibit-A series with respect to the land in dispute. The Deed of Adoption and the order of mutation have also been brought on record and proved by the defence. Learned counsel submits that all these facts clearly show that the accused persons were having the right, title, interest and possession over the land in dispute, which the prosecution side tried to interfere with illegally, due to which, there was quarrel between both the sides and the persons from both the sides were injured and the deceased was killed. Learned counsel submitted that though it is the specific case of the prosecution that the deceased was killed due to hurling of bomb by the accused Srikant Thakur (since dead), and some of the witnesses have stated that the accused Arbind Thakur had also assaulted the deceased by bomb, but this evidence is completely belied by the medical evidence of PW 11 Dr. Raghvendra Prasad Choudhary, and the post-mortem, report proved by him as Exhibit-4, which show that no bomb injury was found on the deceased. Learned counsel accordingly, submitted that the prosecution has failed to bring home the charges against the appellants beyond all reasonable doubts and it is a fit case in which all the accused persons ought to have been given the benefits of doubt. 15. Learned counsel accordingly, submitted that the prosecution has failed to bring home the charges against the appellants beyond all reasonable doubts and it is a fit case in which all the accused persons ought to have been given the benefits of doubt. 15. Learned counsel for the State, as also learned counsel for the informant, have opposed the prayer and submitted that the prosecution witnesses have fully supported the prosecution case giving the details and the manner in which the occurrence had taken place, in which, the deceased was killed due to assault by bomb and other weapons, and other prosecution witnesses were also injured. Learned counsels have submitted that the injuries as detailed in the evidence of PW 11 Dr. Raghvendra Prasad Choudhary could also be caused by bomb. It is submitted that there is no illegality in the impugned judgment of conviction and order of sentence, convicting and sentencing the appellants for the offences charged. 16. Having heard learned counsels for both the sides and upon going through the record, we find that admittedly there was a long standing land dispute between the parties and the occurrence had taken place on the same land, upon which, both the parties claimed their right, title, interest and possession. It is an admitted fact that the said land in question, was recorded in the name of Matuki Thakur, who died issue-less. Though the fact that Matuki Thakur adopted the accused Janardan Thakur as his son, is denied by the prosecution witnesses, but it is admitted by the prosecution witnesses that adoption of Janardan Thakur was challenged by them in the Court, which they lost. It is also an admitted position that the land in question had been mutated in favour of Janardan Thakur, which was also the subject matter of challenge between both the sides. It is also an admitted fact that the rent of the land in dispute was not being paid by the prosecution side, rather, it was being paid by accused Janardan Thakur. It is also an admitted fact that prior to this occurrence, there was a case with respect to looting away of paddy crops from the land in dispute, which was filed by accused Janardan Thakur in the capacity of being adopted son of Matuki Thakur, in which, there was conviction. It is also an admitted fact that prior to this occurrence, there was a case with respect to looting away of paddy crops from the land in dispute, which was filed by accused Janardan Thakur in the capacity of being adopted son of Matuki Thakur, in which, there was conviction. All these facts clearly go to show that prima facie the defence side has been able to show that they were in possession over the land in dispute and it was the prosecution side, which tried to interfere with the possession of the defence side over the land, due to which, there was quarrel between both the parties, in which, both the parties were injured and the deceased died. The injury on the accused Manager Rai is admitted by PW 7 Surya Mohan Sah and the 1.0. PW 10 Jagdish Chandra Yadav, who had sent him to hospital for treatment. Though it is a specific case of the prosecution that the deceased was assaulted by bomb due to which he died, but the evidence of PW 11 Dr. Raghvendra Prasad Choudhary and the post-mortem report proved by him as Exhibit -4 clearly show that there was no bomb injury on the deceased. Though the prosecution has tried to submit that such injuries could also be possible by bomb, but PW 11 Dr. Raghvendra Prasad Choudhary has clearly stated in his cross-examination that no splinter of bomb was there on the dead body and no bomb injury was found on the dead body. The injuries were clearly caused by hard and blunt substance and by penetrating and sharp cutting weapon. Though the prosecution has proved the injury reports of injured Rajendra Thakur, HernIal Thakur, Sitaram Thakur and Ramdhan Thakur, which were marked as Exhibit-5 series, but these injury reports are only proved by the formal witness and the nature of the injuries cannot be looked into. The injury reports proved by formal witness only go to show that those persons were also injured. As such, even the conviction of the appellants under Sections 307/149 or 324/149 of the Indian Penal Code cannot be sustained in the eyes of the law. The injury reports proved by formal witness only go to show that those persons were also injured. As such, even the conviction of the appellants under Sections 307/149 or 324/149 of the Indian Penal Code cannot be sustained in the eyes of the law. As stated above, the injury on the accused Manager Rai is admitted by PW 7 Surya Mohan Sah and PW 10 Jagdish Chandra Yadav, who had sent him to hospital for treatment, but the prosecution has tried to conceal his injury and has denied any knowledge about the same. In the facts of this case, we are of the considered view that even though the prosecution witnesses have fully supported the prosecution case, but on the basis of the evidence on record, the prosecution has failed to bring home the charges against the accused appellants beyond all reasonable doubts, and the accused appellants were entitled to the benefits of doubt. As such, their conviction and sentence by the trial Court below, cannot be sustained in the eyes of the law. 17. For the foregoing reasons, the impugned judgment of conviction dated 25.4.1992 and order of sentence dated 30.4.1992, passed by the learned 2nd Addl. Sessions Judge, Godda, in Sessions Trial No. 311 of 1986/9 of 1991, are hereby, set aside. All the surviving appellants named above, are given the benefits of doubt and they are acquitted of the charges. All the appellants are on bail, and they are discharged from the liabilities of their respective bail bonds. 18. Both these appeals are accordingly, allowed. Let the Lower Court Record be sent back forthwith to the Court concerned, along with a copy of this judgment. Ananda Sen, J. : I agree. Appeals allowed.