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2018 DIGILAW 2788 (JHR)

Budhan Bhuian v. State of Jharkhand

2018-12-18

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants are aggrieved by the impugned Judgment of conviction dated 04.08.2007 and Order of sentence dated 07.08.2007, passed by the learned Additional Sessions Judge, F.T.C. No.-1, Palamau at Daltonganj, in S.T. No.408 of 2001, whereby, the appellants have been found guilty and convicted for the offence under Section 396 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life with fine of Rs.5,000/- each, for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Rajesh Bhuian, the son of the deceased, Badri Bhuian, recorded on 03.06.2000 at about 11:00 P.M., in the night at Sadar hospital, Daltonganj, wherein he has stated that on the same day at about 7:00 P.M., in the evening, the informant along with his father and other family members were in their house situated in village Lalgarh, P.S Bishrampur, District Palamau, when Prasad Bhuian, Budhan Bhuian, Sita Ram Bhuian, Chuhi Bhuian, along with 3 to 4 unknown persons came there. The named accused persons were armed with farsa, tangi etc., and they demanded the money which his father had received under the Indira Aawas Yojna. Upon denial, his father was assaulted by the accused persons in which it is stated that the Prasad Bhuian and Chuhi Bhuian assaulted his father by farsa and Budhan Bhuian and Sita Ram Bhuian assaulted his father by tangi, injuring him. They also looted away the household articles and cash Rs.5,000/-. Upon the alarm raised, the nearby people came and they also saw the occurrence. It is also alleged that the accused persons assaulted the informant also, causing injuries. Claiming that the accused persons had looted the house hold articles and cash and when the same was objected, they assaulted and injured the informant and his father, the fardbeyan was given by the informant, on the basis of which, Bishrampur P.S. Case No.46 of 2000, corresponding to G.R. No. 653 of 2000, was instituted against the four named accused persons and 3-4 unknown persons, for the offences under Sections 341, 342, 323, 324, 307, 379 and 147 of the Indian Penal Code, and investigation was taken up. As the father of the informant died in course of treatment, Section 302 of the Indian Penal Code, was also added. After investigation the police submitted the charge-sheet in the case. 4. As one of the accused Prasad Bhuian had already died, upon the commitment of the case to the Court of Session, charge was framed against the accused Budhan Bhuian, Chuhi Bhuian and Sita Ram Bhuian, for the offences under Sections 396 and 395 read with Section 397 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, the prosecution has examined eight witnesses, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The I.O. of the case has not been examined, and accordingly, the fardbeyan and the formal F.I.R., have been proved through a formal witness, P.W.-8 Rajnish Kumar, who has proved these documents as Exhibits 2 and 3 respectively. 5. P.W.-3 Rajesh Bhuian is the informant of the case. This witness has stated that the occurrence had taken place about five years ago at about 7:00 P.M., in the evening. He was present in his house, when the accused Prasad Bhuian, Sita Ram Bhuian, Budhan Bhuian and Chuhi Bhuian came along with three unknown persons and they started demanding money of Indira Aawas Yojna, which his father had received. Upon denial by his father, the unknown persons entered their house and the named accused persons dragged his father towards a Rahar field. The unknown persons who had entered the house took away the house hold articles and ornaments. The accused persons assaulted his father causing injury on his head, in which, Prasad Bhuian and Chuhi Bhuian assaulted his father by farsa, whereas Sita Ram Bhuian and Budhan Bhuian assaulted his father by tangi. After the occurrence, his father was brought to Daltonganj Sadar hospital, where in course of treatment, he died after 2-3 days. He has stated that his statement was recorded by the police in the hospital, whereupon he had put his thumb impression. This witness has also stated that the accused Prasad Bhuian had died, and he has identified the three accused persons present in the Court. In his cross-examination, this witness has stated that all the three accused persons are his co-villagers and these accused persons had also entered the house. This witness has also stated that the accused Prasad Bhuian had died, and he has identified the three accused persons present in the Court. In his cross-examination, this witness has stated that all the three accused persons are his co-villagers and these accused persons had also entered the house. There was a talk for about half an hour for the demand of money of Indira Aawas Yojna, and upon hearing the noise, the neighboring persons had assembled there. The accused persons took the house hold articles and dragged his father towards the filed which was about 60-70 Kms away, but upon the Court’s question, it has come that he had no knowledge about the length of one Km. He has also stated that his father had become unconscious and he had no talk with his father thereafter. He has denied the suggestion to have falsely implicated the accused persons and to have given false evidence. 6. P.W.-1 Khakharu Bhuian is the son-in-law of the deceased, P.W.-4 Ram Sarikh Bhuian is the son of the deceased, P.W.-5 Jhalia Devi is the wife of the deceased and P.W.-6 Awadhesh Bhuian is the cousin of the informant, whose house is situated nearby, and all these witnesses have supported the prosecution case as eye witness to the occurrence. All these witnesses have stated that these accused persons along with the others came to the house demanding money of Indira Aawas Yojna from Badri Bhuian, and they took away the household property and cash. These witnesses have also stated that they dragged Badri Bhuian to the Rahar field, where he was assaulted by these accused persons by tangi and farsa and thereafter they went away. They have also identified the accused persons in the Court. They have stated that the deceased was brought to Sadar Hospital where he died in course of treatment. P.W.-4 Ram Sarikh Bhuian has stated in his cross-examination that the houses of the accused persons are situated nearby their house, and he has also stated that the field where his father was dragged and assaulted was situated at a distance of 70 yards from his house, and the house of the accused is situated at about 10 steps from the said field. Similarly, P.W.-5 Jhalia Devi has also stated in her cross-examination that the accused persons are also related to them, and the field where her husband was dragged and assaulted was situated at a distance of about 70 steps. P.W.-6 Awadhesh Bhuian has also stated in his cross-examination that the field where the deceased was dragged was at a distance of about 70 feet from the house of the informant. He has also admitted that there was no talk between the deceased Badri and the accused in his presence, but he has stated that he had seen the occurrence from a distance of about 20 yards. 7. P.W.-2 Nanhak Bhuian is the neighbour of the informant and this witness has also supported the prosecution case as eye witness to the occurrence, stating that the deceased was dragged to the Rahar field, where he was assaulted by the accused persons, but in his cross-examination, he has admitted that when he reached the place of occurrence upon noise, the accused persons had already gone away, and he had seen the deceased lying injured, who was unconscious and he was brought to hospital. 8. P.W.-7 Dr. Birendra Prasad had conducted the post-mortem examination on the dead body of the deceased on 06.06.2000, and had found the following ante-mortem injuries on the dead body:- Sharp cut injury 4½” x 1½”x1” on occipital region of scalp. Wound was bandaged and stitched. On dissection underlying meninges and brain substance found lacerated and haemorrhage found. He has stated that the cause of death was due to shock and haemorrhage following the aforesaid injury caused by heavy sharp cutting weapon, such as farsa and tangi. He has proved the post-mortem report to be in his pen and signature, which was marked as Exhibit-1. In his cross-examination, this witness has stated that there was only one injury on the dead body, and no other injury was found on any other portion of the dead body. 9. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused have denied the evidence against them. The defence has also examined one witness, D.W.-1 Lakhan Bhuian, who has stated that the deceased was a drunkard and he died due to fall. 10. 9. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused have denied the evidence against them. The defence has also examined one witness, D.W.-1 Lakhan Bhuian, who has stated that the deceased was a drunkard and he died due to fall. 10. 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 law, inasmuch as, there is inordinate delay in lodging the F.I.R. The F.I.R. would show that the fardbeyan was recorded on 03.06.2000, i.e., the date of alleged occurrence itself, at about 11:00 P.M. in the night in the hospital, whereas, the F.I.R. was lodged on 06.06.2000, and there is no explanation for this inordinate delay. Even the I.O. has not been examined in the case who could have explained the delay. Learned counsel further submits that even though there is specific allegation against four accused persons to have assaulted the deceased by farsa and tangi, but only one injury was found on the dead body of the deceased, which makes the prosecution case very doubtful. It is further submitted that according to the F.I.R., the place of occurrence is the house of the deceased, but the evidence of all the witnesses supporting the prosecution case, show that the deceased was dragged to the Rahar field which was situated at a distance of 60 yards or 60 feet as stated by the witnesses. It is submitted that thus, the place of occurrence has also been changed by the witnesses and due to the non-examination of the I.O., the place of occurrence has not been proved in the case. Learned counsel accordingly, submitted that it is a fit case in which the appellants ought to have been given the benefits of doubt. 11. Learned counsel for the State on the other hand, has opposed the prayer, submitting that the prosecution case is supported by the family members and the neighbours of the deceased, as eye witnesses to the occurrence, stating that all these accused persons had assaulted the deceased to death and they had also looted away the household articles and cash. 11. Learned counsel for the State on the other hand, has opposed the prayer, submitting that the prosecution case is supported by the family members and the neighbours of the deceased, as eye witnesses to the occurrence, stating that all these accused persons had assaulted the deceased to death and they had also looted away the household articles and cash. The four named accused persons were accompanied with three more unknown persons and since force was also used, the offence of dacoity is clearly made out, and in view of the fact that the father of the informant died, due to injury sustained by assault during the occurrence, the offence is clearly made out under Section 396 of the Indian Penal Code. Learned counsel submitted that the death of the deceased is also proved by the medical evidence of P.W.-7 Dr. Birendra Prasad and the post-mortem report proved by him as Exhibit-1. Learned counsel submitted that no prejudice can be said to have been caused to the accused persons due to non-examination of the I.O., in the case, and accordingly, the prosecution has been able to bring home the charge against the accused persons beyond all reasonable doubts, and there is no illegality in the impugned judgment of conviction and Order of sentence passed by the Trial Court below. 12. Having heard learned counsels for both sides and upon going through the record, we find that admittedly, the occurrence took place on 03.06.2000 at about 7:00 P.M., and the fardbeyan about the occurrence was also given on 03.06.2000 at about 11:00 P.M., in the Sadar Hospital at Daltonganj. It is the evidence of the witnesses that after two to three days of being admitted in the hospital, the deceased died in course of treatment. Though the definite date of the death of the deceased has not been stated by any witness, but the evidence of P.W.-7 Dr. Birendra Prasad shows that he conducted the post-mortem examination on the dead body of the deceased on 06.06.2000. We find from the record that this is the date of lodging the F.I.R. also, which shows that only after the deceased died, the F.I.R. was instituted. This delay of three days in lodging the F.I.R., is not at all explained in the present case, and it cannot be said with surety whether the fardbeyan itself is ante-dated or not. 13. This delay of three days in lodging the F.I.R., is not at all explained in the present case, and it cannot be said with surety whether the fardbeyan itself is ante-dated or not. 13. This apart, we find force in the submission of the learned counsel for the appellant that the place of occurrence has also been changed by the prosecution witnesses. According to the F.I.R., the assaults took place upon the deceased in his house itself, and thereafter he was taken to hospital, whereas according to all the prosecution witnesses, including the family members of the deceased, the deceased was dragged from his house to a Arhar field, which was at a distance of about 60 yards or 60 feet, from their house and it was near the house of the accused. As such, according to the evidence of the witnesses there is allegation against the accused persons to have dragged the deceased from his house up to near their own house, and to have assaulted the deceased there, which ultimately proved fatal. The non-examination of the I.O., in the present case has resulted in non-proving of the place of occurrence in this case, which also has caused prejudice to the defence. 14. Further more, all the eyewitnesses have stated that all the four accused persons had assaulted the deceased by sharp cutting weapons, but this evidence is not supported by the medical evidence of P.W.-7 Dr. Birendra Prasad, and the post-mortem report proved by him as Exhibit-1, which show that there was only one injury on the dead body of the deceased. 15. We are of the considered view that in view of the aforementioned discrepancies, the prosecution has not been able to bring home the charge against the accused persons beyond all reasonable doubts, and the benefit thereof must have gone to the accused persons. As such the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 16. For the foregoing reasons, the impugned Judgment of conviction dated 04.08.2007 and Order of sentence dated 07.08.2007, passed by the learned Additional Sessions Judge, F.T.C. No.-1, Palamau at Daltonganj, in S.T. No. 408 of 2001, convicting and sentencing the appellants Budhan Bhuian, Sita Ram Bhuian and Chuhi Bhuian, for the offence under Section 396 of the Indian Penal Code, are hereby, set aside. Consequently, the appellants are given the benefits of doubt, and they are acquitted of the charge. All these appellants are in custody, undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention is not required in any other case. 17. We also find that P.W.-5 Jhalia Devi, is the victim of crime in this case, as she has admittedly lost her husband as the result of a crime. We are of the considered view that she should be duly compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, to take up the matter with the concerned District Legal Services Authority, so that P.W.-5 Jhalia Devi, may be duly compensated at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 18. 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.