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2018 DIGILAW 927 (JHR)

Samson Minj v. State of Bihar (Now Jharkhand)

2018-04-26

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants are aggrieved by the Judgment of conviction dated 22.11.1995 and Order of sentence dated 23.11.1995, passed by the learned Additional Sessions Judge, Gumla, in S.T. No. 166 of 1989, whereby, these appellants have been found guilty and convicted for the offences under Sections 147, 148, 149, 323 & 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life for the offence under Sections 302/34 of the Indian Penal Code, and R.I for one year each for the offence under Section 323 of the Indian Penal Code. However, no separate sentence was passed for the offences under Sections 147, 148 and 149 of the Indian Penal Code, and all the sentences were directed to run concurrently. 3. It may be stated that in all, 32 accused persons were put to trial and during trial, five accused persons died and out of the remaining 27 accused persons, 20 accused persons were acquitted after trial and only seven accused persons were convicted and sentenced as aforesaid by the Trial Court below, who jointly preferred this appeal before this Court. During the pendency of this appeal also, one appellant, Ishaque Minj, who was appellant No.4, died and his name has been deleted from the array of the appellants by order dated 12.4.2018. As such, there are only six appellants before us, as on today. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Ishwar Sai, the son of the deceased Govind Sai, recorded on 25.12.1988 at his village. It is alleged that on the previous day, i.e., on 24.12.1988, one Awadhesh Singh accompanied with Indradeo Singh and about 30 persons came to the village of the informant, stating that cow slaughter was going on in the village, which should be stopped. It is alleged that on the previous day, i.e., on 24.12.1988, one Awadhesh Singh accompanied with Indradeo Singh and about 30 persons came to the village of the informant, stating that cow slaughter was going on in the village, which should be stopped. It is stated that thereafter, the informant accompanied with his father Govind Sai, his brothers Gajadhar Sai, Bihari Sai, Guruman Sai and other villagers went in a procession, shouting slogans to stop the cow slaughter and when they were returning and had reached near the tamarind tree in their village, 26 named accused persons, including these appellants, variously armed by lathi, arrows and baluwa, along with other unknown persons, surrounded them and they assaulted Govind Sai, the father of the informant by lathi on his head, causing bleeding injuries on his head. When his father fell down, all the accused persons continued to assault him by lathi and they also assaulted his brother, Gajadhar Sai by lathi and Baluwa, due to which, he also fell down. His brothers, Bihari Sai and Guruman Sai were also assaulted and injured by lathi and Baluwa and the informant and other villagers were also assaulted and injured. Thereafter, the informant and the other persons fled away towards the forest and after some time, when they returned near the tamarind tree, they found his father Govind Sai unconscious and his three brothers were also lying injured there. His father and brothers were brought to the house, where his father Govind Sai died and other brothers were in injured condition. On the basis of the fardbeyan of the informant, Dumari P.S Case No. 57 of 1988, corresponding to G.R No.782 of 1988, was instituted for the offences under Sections 147, 148, 149, 302, 323, 324/34 of the Indian Penal Code, against the accused persons, including these appellants, and investigation was taken up. After investigation, the police submitted the charge-sheet against the thirty two named accused persons. 5. After commitment of the case to the Court of Session, charge was framed against all the 32 accused persons, for the offences under Sections 302/34, 302/149, 307, 324, 147, 148 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. 5. After commitment of the case to the Court of Session, charge was framed against all the 32 accused persons, for the offences under Sections 302/34, 302/149, 307, 324, 147, 148 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, the prosecution has examined in all eighteen witnesses, including the Doctor, who had examined the injuries of the injured persons and the I.O of the case. The Doctor conducting the post-mortem examination on the dead body of the deceased had not been examined in the case and accordingly, the post-mortem report has been proved by a formal witness, P.W.-10 Pardeep Kumar Bhagat, as Exhibit-8. This formal witness has also proved the injury reports of the injured persons as Exhibits-3 to 7. The formal FIR was also proved as Exhibit-1 by a formal witness P.W.-1 Abnezar Khaka. 6. Sans the unnecessary details of the statements of the prosecution witnesses, suffice would be to say that the prosecution case is supported by the material witnesses P.W.-2 Gajadhar Sai, P.W.-3 Ishwar Sai, P.W.-4 Bihari Sai, P.W.-5 Gurman Sai, P.W.-6 Kamal Sai, P.W.-7 Megh Nath Sai, P.W.-9 Ranju Sai @ Sarju Sai, P.W.-11 Sikandar Sai, P.W.-14 Mahesh Ram, P.W.-15 Lohra Sai and P.W.-17 Inder Deo Singh. Other witnesses are either tendered or the formal witnesses proving some documents. Though the aforesaid material witnesses have supported the prosecution case, but from their evidence, it is apparent that P.W.-2 Gajadhar Sai, the informant P.W.-3 Ishwar Sai, P.W.-4 Bihari Sai, P.W.-5 Gurman Sai and P.W.-11 Sikandar Sai, who are the sons of the deceased, and P.W.-9 Ranju Sai @ Sarju Sai, have made improvements over their initial version of the prosecution case as given before the Police under Section 161 of the Cr.P.C. In their statements given before the Police, all these witnesses had made only omnibus allegation against all the named accused persons to have assaulted the deceased and the injured persons. No specific allegation was made against anyone, whereas in their evidences, they have stated that the first assault was given to the deceased by lathi by the accused, Samson Minj, due to which, he fell down and thereafter, the other accused persons assaulted them. Some of them have also made specific allegations against the other appellants to have assaulted and injured the other persons. Some of them have also made specific allegations against the other appellants to have assaulted and injured the other persons. On the basis of these evidences, seven accused persons, who have jointly filed this appeal, and out of whom one appellant has died, have been convicted and sentenced for the offences under Sections 147, 148, 149, 323, 302/34 of the Indian Penal Code. As against all the remaining accused persons also, there is the evidence of omnibus allegation, without any specific allegation of assault. All the twenty other accused persons were given the benefits of doubt and they were acquitted of the charges by the Trial Court below, on the ground that there was no allegation of any specific overt act against them, as such there was no evidence that they also shared the common object of the unlawful assembly. It may be stated that P.W.-2 Gajadhar Sai, the informant P.W.-3 Ishwar Sai, P.W.-4 Bihari Sai, P.W.-5 Gurman Sai, P.W.-6 Kamal Sai, P.W.-7 Megh Nath Sai, P.W.-9 Ranju Sai @ Sarju Sai, and P.W.-15 Lohra Sai have also stated that they had seen the mortal remains of the cattle in the house of Ishaq Lakra, though no such statement was made in the fardbeyan. 7. P.W.-13 Raghu Prasad Singh is the I.O of the case. This witness has proved the fardbeyan, the inquest report and the other necessary documents, and has stated about the investigations made by him. Though he has stated that he had visited the place of occurrence, i.e., near the tamarind tree and had found lot of blood at the place of occurrence and had seized the bloodstained soil and had prepared the seizure list, which also he has proved, but this witness has not stated anywhere in his evidence that he had also visited the place where it is alleged by the witnesses that the cow slaughter was made and the witnesses had seen the mortal remains of the cattle. Thus, the very genesis of the occurrence has not been proved by the I.O. 8. Thus, the very genesis of the occurrence has not been proved by the I.O. 8. The attention of P.W.-2 Gajadhar Sai, the informant P.W.-3 Ishwar Sai, P.W.-4 Bihari Sai, P.W.-5 Gurman Sai, P.W.-9 Ranju Sai @ Sarju Sai and P.W.-11 Sikandar Sai, who had made improvements over their statements before the police, making specific allegations of assault against the appellants, had been drawn in their respective cross-examinations, and necessary contradictions were taken from the I.O., P.W.-13 Raghu Prasad Singh, which show that the aforesaid witnesses had not made any specific allegation of assault against any accused, rather they had made only omnibus allegation against all the accused persons. The evidence of P.W.-13 Raghu Prasad Singh also shows that the witnesses had not stated before him that they had seen the mortal remains of the cattle in the house of Ishaq Lakra. Indeed, the evidence of the I.O. clearly shows that he had neither visited the house of Ishaq Lakra nor had seized any mortal remains of the cattle. 9. P.W.-18 Dr. R.P. Agrawal had examined the injuries of Bihari Sai, Gajadhar Sai, Inder Deo Singh, Kamal Sai and Guruman Sai, and has proved the injuries on them. Their injury reports have also been proved by this witness, which were earlier marked as Exhibits 3 to 7. 10. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced by the defence. On the basis of the evidence on record, though seven accused persons against whom specific allegations were made by the witnesses, have been convicted and sentenced by the Trial Court below, but the other twenty accused persons against whom also there was evidence of omnibus allegation of assault, have been acquitted by the Trial Court below, giving them the benefits of doubt. Admittedly, there is no appeal against the acquittal of twenty other accused persons, by the Trial Court below. 11. Admittedly, there is no appeal against the acquittal of twenty other accused persons, by the Trial Court below. 11. 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, all the materials against all the accused persons were common in the statements of the witnesses before the police, where there was only omnibus allegation against all the named accused persons, but in their evidence before the Court, the interested witnesses, particularly the sons of the deceased, have made improvements in their earlier versions and they have made specific allegations against the appellants, though they have supported the case against all the other named accused persons also. It is submitted by the learned counsel that the appellants have been convicted and sentenced only on the basis of the improvements made by these witnesses over their earlier versions, which is absolutely illegal and cannot be sustained in the eyes of law. 12. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the material prosecution witnesses have supported the prosecution case and the Doctor examining the injured witnesses have also been examined as P.W.-18 Dr. R.P. Agrawal, who has proved the injuries on the injured persons. Learned counsel also submitted that though the Doctor conducting the post-mortem examination on the dead body of the deceased has not been examined in the case, but the post-mortem report of the deceased has been proved by a formal witness and the same was marked Exhibit-8. Learned counsel submitted that on the basis of the evidence on record, the appellants have been rightly convicted and sentenced by the Trial Court below. 13. Having heard learned counsels for both sides and upon going through the record, we find that in the F.I.R., there is no specific allegation against any accused to have either assaulted the deceased or the injured persons. There is only omnibus allegation against all the named 26 accused persons, including these appellants, to have assaulted and injured the deceased as well as the informant, his brothers and the other persons, out of whom, subsequently the father of the informant died. There is only omnibus allegation against all the named 26 accused persons, including these appellants, to have assaulted and injured the deceased as well as the informant, his brothers and the other persons, out of whom, subsequently the father of the informant died. Though some of the material witnesses, in their evidence have made only omnibus allegation against all the accused persons to have assaulted the deceased and the injured persons, but the fact remains that P.W.-2 Gajadhar Sai, P.W.-3 Ishwar Sai, P.W.-4 Bihari Sai, P.W.-5 Gurman Sai, P.W.-9 Ranju Sai @ Sarju Sai and P.W.-11 Sikandar Sai, have made improvements in their earlier versions and have made specific allegation against Samson Minj to have assaulted the deceased by lathi on his head and some of them have also made allegation against the other appellants to have assaulted the deceased and the injured persons, apart from the omnibus allegation against all the other accused persons. The evidence of the I.O, P.W.-13 Raghu Prasad Singh clearly shows that they have made improvements in their earlier versions made before the police, by making specific allegations against these appellants. The very genesis of the occurrence, i.e., the killing of the cattle is not proved in the case, as in his entire evidence, the I.O. P.W.-13 Raghu Prasad Singh has not stated that he had visited the place where the cow slaughtering was made, rather he has admitted that the witnesses had not stated before him that they had seen the mortal remains of cattle at the house of Ishaq Lakra. Indeed, this fact was not stated even in the FIR, and there is nothing in the evidence of the I.O., to show that he ever visited the house of Ishaq Lakra and seized any mortal remains of cattle. 14. We are of the considered view that since on the basis of the omnibus allegation, twenty named accused persons, who were facing the trial alongwith the appellants, were acquitted by the Trial Court below, giving them the benefits of doubt, the appellants also deserved the same benefit, ignoring the improvements made by the witnesses in their evidences, against these appellants. 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. 15. 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. 15. For the foregoing reasons, the impugned Judgment of conviction dated 22.11.1995 and Order of sentence dated 23.11.1995, passed by the learned Additional Sessions Judge, Gumla, in S.T. No. 166 of 1989, convicting and sentencing the appellants for the offences under Sections 147, 148, 149, 323, 302/34 of the Indian Penal Code, are hereby, set aside. Consequently, all the appellants, viz., Samson Minj, Ajit Lakra, Nirmal Ekka, Prem Ekka, Sudhir Tirkey and Prabhat Tirkey, are hereby, 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. 16. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.