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2018 DIGILAW 933 (JHR)

Bhuneshwar Mahto v. State of Jharkhand

2018-04-26

KAILASH PRASAD DEO

body2018
JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard learned counsel for the appellant, Mr. Prabhat Kumar Sinha assisted by Mr. Diwakar Jha, Advocates as well as learned counsel for the State, Mr. Abhay Kumar Tiwari, Additional Public Prosecutor. 2. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence both dated 23.12.2003 passed by learned Sessions Judge, Hazaribagh in Sessions Trial No. 262 of 1997 whereby the sole appellant, Bhuneshwar Mahto has been convicted for offence committed under Section 324 of the Indian Penal Code and awarded rigorous imprisonment for one year with a fine of Rs. 5000/- (fine amount shall be paid to the informant Sita Devi) and in default of payment of fine, appellant shall undergo further sentence of six months rigorous imprisonment. The appellant has been charged both under Section 302 and 201 of the Indian Penal Code but has been acquitted by the learned Trial Court. 3. Being aggrieved by the said impugned judgment of conviction and order of sentence, the present appeal has been preferred before this Hon’ble Court which has been admitted on 06.02.2004 and since then this Criminal appeal is pending before this Court. 4. The prosecution case is based upon fardbeyan of Sita Devi wife of Bhuneshwar Thakur (deceased) at Mufassil police station, Hazaribagh recorded by Sub-Inspector of police Krishna Kumar on 06.01.1997 at 3.30 p.m. where the informant has alleged that on Thursday (02.01.1997) at around 11.00 a.m. one snake-charmer was playing the game of snakes which was witnessed by Bhuneshwar Thakur (deceased) and other co-villagers, near the house of the appellant Bhuneshwar Mahto. The informant was also watching the same from behind. After some time Bhuneshwar Mahto (appellant) asked her husband that why he is not shaving his beard and cutting hair, upon which her husband disclosed that his son Dinesh Thakur has taken the instrument to Hazaribagh and as such the same will be done by tomorrow. The informant has alleged that upon this, Bhuneshwar Mahto became angry and started abusing her husband. When protest was made by her husband, then Bhuneshwar Mahto, who was having danda in his hand started assaulting her husband and the informant started crying but by that time the accused had inflicted several danda blows on her husband. When the villagers, who were present stopped him. When protest was made by her husband, then Bhuneshwar Mahto, who was having danda in his hand started assaulting her husband and the informant started crying but by that time the accused had inflicted several danda blows on her husband. When the villagers, who were present stopped him. Thereafter Bhuneshwar Mahto left assaulting the husband of the informant but by that time her husband has already fallen on ground and thereafter he has assaulted on his face, chest and neck by fist and also asked the villagers to leave the place. The villagers went for their houses and informant along with her son, Dinesh have tried to bring her husband to the house but he was unable to walk as he was in pain and became unconscious. The informant made several pleas to the accused, Bhuneshwar Mahto but he abused her and asked to go back to her house as, her husband shall be alright. When it was dark then informant along with her son, Dinesh went to her house to bring some articles to cover the body, by that time there was cold but when informant returned with the mattress, she does not found her husband at that place. The informant enquired about her husband from Bhuneshwar Mahto and his in-mates of the house who have disclosed that they have no knowledge, he might have gone to some place, go and search him. The informant tried to search her husband but she could not get whereabouts of him. Thereafter, on the next morning she went to inform her father-in-law, Gauri Hazam, who is working as a guard at Hazaribagh stadium and has disclosed about the occurrence. In the meantime, she has searched her husband at all probable places but could not get whereabouts of her husband. On 06.01.1997 at around 10.00 a.m. one villager named Degni Devi, who is residing in front of her house came to her house and said, that a dead body is lying inside the well near her house. The informant went to the well and saw the dead body. Thereafter the informant identified the body and started crying. The dead body of the deceased was taken out from the well and the informant went to the police station and gave her statement. 5. The informant went to the well and saw the dead body. Thereafter the informant identified the body and started crying. The dead body of the deceased was taken out from the well and the informant went to the police station and gave her statement. 5. On the basis of fardbeyan Police registered Sadar Mufassil P.S. Case No. 5/1997 dated 06.01.1997 under Section 302, 201 of the Indian Penal Code of the consequent G.R. No. 28 of 1997 and after investigation police submitted charge sheet vide Charge Sheet No. 34 of 1997 dated 26.04.1997 under Section 302, 201 and 120(B) of the Indian Penal Code. 6. That cognizance of the offence was taken on 02.05.1997 and the case was committed to the Court of Sessions vide notification dated 21.05.1997. 7. The charge has been framed against the accused appellant Bhuneshwar Mahto under Section 302, 201 of the Indian Penal Code on 28.01.2000. 8. That prosecution has examined altogether nine witnesses and also adduced exhibited documentary evidences. Signature of Gauri Hazam on fardbeyan has been proved and marked as Exhibit-1. Post-mortem report as Exhibit-2, fardbeyan as Exhibit-3 endorsement on the fardbeyan as Exhibit-3/1, signature of Sunil Kumar Singh on formal F.I.R. as Exhibit 4 and the inquest report as Exhibit 5. 9. Sita Devi, informant of the case has been examined as PW-1. This witness has stated, that occurrence took place three years ago on Thursday at 11.00 a.m. when she went near the place, where snake charmer who was playing the game of snakes, which was witnessed by several persons of the village along with the appellant, Bhuneshwar Mahto and her husband, Bhuneshwar Thakur. Then after some time, Bhuneshwar Mahto asked her husband that why he is not shaving his beard, upon which her husband replied that his son Dinesh Thakur has taken the instrument of shaving beard with him to Hazaribagh and the same will be done on Friday, after his return. Thereafter Bhuneshwar Mahto assaulted her husband with danda and also scolded the informant. The informant has alleged that her husband fell down after assault and when she asked Bhuneshwar Mahto to help her taking her husband to the house, he threatened her. Thereafter Bhuneshwar Mahto assaulted her husband with danda and also scolded the informant. The informant has alleged that her husband fell down after assault and when she asked Bhuneshwar Mahto to help her taking her husband to the house, he threatened her. Because of the injuries sustained by her husband, her husband could not stand up and thereafter informant went to her house to bring some cloth, which can be used as a bed, as, it was a cold evening. The informant went along with her son but when she returned, her husband was not there. The informant went to Bhuneshwar Mahto’s house and asked about her husband but he said that he has no knowledge and she should go and search him. The next morning she went to her father-in-law, Gauri Hazam at Hazaribagh who also asked Bhuneshwar Mahto but nothing has been disclosed. After two days a co-villager lady (not remember her name) came and has disclosed that dead body of a person is in the well upon which, the informant went to the well and saw the dead body of her husband. Informant along with her father-in-law went to the police station and informed about the occurrence and the same was recorded and she put her thumb impression. She further stated that her father-in-law was also present, who has also put his signature which has been identified and proved as Exhibit 1. The informant has admitted during cross-examination that the house of the accused and the house of the informant is in front of each other and the snake charmer was playing the game in front of her house, which is the back side of the house of Bhuneshwar Mahto, where entire villagers have assembled including her husband but she could not say the name of the person present there. She has further stated that 2-4 co-villagers asked Bhuneshwar Mahto, not to assault him but she does not remember the name of those persons. She has further stated, that her husband was assaulted, at that time co-villagers were present but she is not remembering their name. She has further stated that 2-4 co-villagers asked Bhuneshwar Mahto, not to assault him but she does not remember the name of those persons. She has further stated, that her husband was assaulted, at that time co-villagers were present but she is not remembering their name. During cross-examination, in paragraph 9, she has admitted, that her husband used to take liquor seldomely and earlier also he has fallen in a well while fetching water, who was saved by the co-villagers and also scolded Bhuneshwar Thakur that after taking liquor he should not go near the well and her husband has fallen in the same well earlier also. 10. Gauri Hazam, father of the victim and father-in-law of the informant has been examined as PW-2. This witness has stated, that occurrence took place while he was working at Hazaribagh stadium. His grandson, Dinesh Thakur informed him that his father is not in the house as he was assaulted by Bhuneshwar Mahto. After three days the grandson of this witness has informed that dead body of his father (Bhuneshwar Thakur) is lying in the well which has been taken out and thereafter this witness went there and saw the dead body and there, he got information that Bhuneshwar Mahto has assaulted Bhuneshwar Thakur. This witness has stated that fardbeyan of his daughter-in-law was recorded at Mufassil Police Station where he was also present and he also put his signature which has already been marked as Exhibit-1. This witness has stated during cross-examination, that his grandson, Dinesh Thakur came to Hazaribagh stadium and informed about his father upon, which he said that he (Bhuneshwar Thakur) might have gone to some relative’s place. This witness has also admitted, that his son used to take liquor seldomely. This witness has categorically stated that he has not seen any occurrence committed in his presence. 11. Dinesh Thakur, son of the victim and son of the informant has been examined as PW-3. He has stated, after his return from Hazaribagh, his younger sister, Rinki has disclosed that his father has been assaulted by Bhuneshwar Mahto in front of their house. This witness has seen his father in the injured condition lying there and thereafter his mother has disclosed that one snake charmer came and while playing, his father was also there along with his mother (an objection was made that he is a hearsay witness). This witness has seen his father in the injured condition lying there and thereafter his mother has disclosed that one snake charmer came and while playing, his father was also there along with his mother (an objection was made that he is a hearsay witness). This witness has stated in paragraph- 5 of his cross-examination that in the morning of the next day, he went to Gauri Hazam (grandfather), who was at Hazaribagh stadium and has disclosed that his father was assaulted and also informed that he is not getting whereabouts of his father. This witness has admitted in paragraph 6 of his cross-examination, that Hazaribagh police station is situated at a distance of about half k.m. from the Hazaribagh stadium, which is a mufassil police station and at the time of playing of snakes game, 100 of co-villagers were present. This witness has admitted, in paragraph 8 of his cross- examination, that well from which the dead body of his father was taken out is situated at a distance of 5-6 steps from his house and he is not using that well rather, the neighbourers are using that well. This witness has also admitted, in paragraph 9 of his cross-examination, that earlier his father has also fallen inside the well because of his mistake. 12. Doctor Bimal Kumar Verma has been examined as PW-4. He is the Medical Officer, who conducted the post-mortem examination of the dead body of Bhuneshwar Thakur on 07.01.1997 at 10 p.m. and found no any ante mortem injury present on the dead body. Old ulcer present on the back of left side of the chest. On internal examination both lungs sponzy, swellen and cut section finds froth discharged. Doctor has opined that cause of death is asphyxia due to drowning. He has proved the carbon copy of the post-mortem report prepared by him and bears his signature as Exhibit-2. During cross-examination this witness categorically stated that he has not found any injury of violence. 13. Degni Devi has been examined as PW-5. She has seen the dead body of Bhuneshwar Thakur, in the well and thereafter informed the informant, Sita Devi. 14. Anoop Kumar Sharma has been examined as PW-6. He is the inquest witness, who has put his signature on the inquest report along with one Teklal Thakur and proved his signature on the inquest report of Bhuneshwar Thakur. 15. She has seen the dead body of Bhuneshwar Thakur, in the well and thereafter informed the informant, Sita Devi. 14. Anoop Kumar Sharma has been examined as PW-6. He is the inquest witness, who has put his signature on the inquest report along with one Teklal Thakur and proved his signature on the inquest report of Bhuneshwar Thakur. 15. Shambhu Mochi has been examined as PW-7. This witness has categorically stated that he has no knowledge, how Bhuneshwar Thakur died nor he has any knowledge about the case. Even then the prosecution has not declared this witness to be hostile. 16. Pritam Thakur has been examined as PW-8. This witness has admitted, that the dead body of the Bhuneshwar Thakur was taken out from the well and sent for post-mortem. He has identified accused present in the dock and said that he has no knowledge in which case he is in custody. This witness has stated in para-3 of his cross-examination, that he is working in a saloon at Hazaribagh and got information about death of Bhuneshwar Thakur at Hazaribagh. During cross-examination he has categorically stated that he has no knowledge how Bhuneshwar Thakur died. 17. Krishna Kumar, S.I. Police has been examined as PW-9. He is the police Officer who has recoded the fardbeyan which has been marked as Exhibit 3 and his signature as Exhibit 3/1 and the formal F.I.R. bearing signature of Sunil Kumar Singh as Exhibit 4. This witness has stated that he has taken the charge of the investigation and investigated the case. The inquest report was prepared in presence of Teklal Thakur and Anoop Kumar Sharma which has been marked as Exhibit 5 and thereafter the body was sent for post-mortem and after inspection of the place of occurrence, the well was found to be a common well of the villagers, in which dead body of deceased Bhuneshwar Thakur was found having a diameter of 10 meters full of water as per the statement of Gauri Hazam. The well has 40 to 50 feet depth. This witness has stated that after investigating of the case, the charge sheet was submitted against the accused. This witness has admitted in paragraph 7 of his cross-examination that he has not described the place of occurrence in his diary by disclosing the name of the persons whose house are situated near the place of occurrence. This witness has stated that after investigating of the case, the charge sheet was submitted against the accused. This witness has admitted in paragraph 7 of his cross-examination that he has not described the place of occurrence in his diary by disclosing the name of the persons whose house are situated near the place of occurrence. This witness has admitted that he has mentioned in the case diary that one and half month ago also, this Bhuneshwar Thakur has fallen in the well. 18. After recording the prosecution evidence, the statement of Bhuneshwar Mahto (appellant) has been recorded under Section 313 Cr.P.C. 19. The learned Trial Court on the basis of the evidence collected during investigation and after hearing the parties convicted the appellant under section 324 of the Indian Penal Code as learned Trial Court has not found the appellant, who has been charged under Section 302/201 of the Indian Penal Code to be guilty. 20. Heard learned counsels for the appellant Mr. Prabhat Kumar Sinha assisted by Mr. Diwakar Jha and learned counsel for the State Mr. Abhay Kumar Tiwari, Additional Public Prosecutor. Perused the records, the First Information report, Exhibits, the learned counsel for the appellant has submitted, that there is an inordinate delay in filing the First Information Report as per the fardbeyan of the informant (Exhibit-3). The informant’s son (Dinesh Thakur) went before her father-in-law, Gauri Hazam, who was working as a guard at Hazaribagh Stadium in the very next day of the occurrence i.e. on 03.01.1997 but no information was given to the Hazaribagh Mufassil Police station, which is situated at a distance of half kilometer from the Hazaribagh Stadium nor the chowkidar of the village has informed about the missing of Bhuneshwar Mahto since 02.01.1997 and it is only after body of Bhuneshwar Thakur was found in the well, the F.I.R. was lodged on 06.01.1997. Learned counsel for the appellant, Mr. Prabhat Kumar Sinha has further submitted, that Dr. Bimal Kumar Verma (PW-4) has not found any ante mortem injury rather, doctor has opined that death was due to drowning. He has not found any injury of violence. Learned counsel for the appellant has submitted, that Sita Devi is not a witness upon whose evidence the court can rely as Sita Devi has given contradictory statement in the fardbeyan. Bimal Kumar Verma (PW-4) has not found any ante mortem injury rather, doctor has opined that death was due to drowning. He has not found any injury of violence. Learned counsel for the appellant has submitted, that Sita Devi is not a witness upon whose evidence the court can rely as Sita Devi has given contradictory statement in the fardbeyan. From perusal of the fardbeyan, it appears that her husband, Bhuneshwar Thakur has said to Bhuneshwar Mahto (appellant) that the instrument of shaving has been taken by her son to Hazaribagh but from perusal of the fardbeyan, Sita Devi has stated that she along with her son, Dinesh Thakur were trying to lift her husband from place of occurrence to her house and when they could not do the same, they went to the house to bring some cloth. The normal conduct of a human is that if mother and son both are present then one person will remain there with the injured at the place of occurrence and the other person will go to bring the cloth. Apart from that her house is situated in front of the place of occurrence, which is back of the house of Bhuneshwar Mahto and as such this explanation of informant in the fardbeyan is itself doubtful. 21. The learned counsel for the appellant has further submitted that none of the witnesses examined in this case are eye-witness to the occurrence. Although the informant has stated in her fardbeyan that while snake charmer was playing the game, 100 co-villagers were present at the place of occurrence. There is no eye-witness to the occurrence and on the basis of such evidence, the guilt of the offence cannot be alleged against the appellant, the Trial court has wrongly convicted the appellant under Section 324 of the Indian Penal Code, as the learned Trial Court has found no material for conviction of the appellant under Section 302/201 of the Indian Penal Code and as such, conviction under Section 324 of the Indian Penal Code of the appellant by the impugned judgment of conviction and order of sentence is bad in law and is fit to be quashed and set aside. 22. Mr. 22. Mr. Abhay Kumar Tiwari, learned Additional Public Prosecutor appearing on behalf of the State has submitted, that informant is an eye-witness to the occurrence and her evidence is consistent with the prosecution case and learned Trial Court has rightly convicted the appellant under Section 324 of the Indian Penal Code as the learned Trial Court has acquitted the appellant under Section 302 and 201 of the Indian Penal Code and as such at this stage, there may not be any interference in the impugned judgment of conviction and order of sentence. 23. After hearing, learned counsel for the parties and perusing the Lower Court record including the fardbeyan, deposition and the exhibits, this court is of the opinion that the statements made by the learned counsel for the appellant has some force. It is true that there is a delay in lodging the First Information Report. Apart from this, as per the evidence adduced by the PW-1 during trial are not consistent with the post-mortem report (Exhibit-2) proved by Dr. Bimal Kumar Verma (PW-4). No villager has been examined in this case to support the prosecution case although presence of 100 witnesses is admitted by the informant herself. It is also apparent from the fact that, the well from which the dead body was taken out is situated in front of her house at a distance of 5 to 6 steps and that well was used by the villagers which has been claimed by the informant (PW-1) that is not being used by her. Under such circumstances, the statement of the informant cannot be relied upon. It is also true that deceased Bhuneshwar Thakur used to take liquor seldomely as admitted by PW-1 herself and has fallen in the well two and half months ago also admitted by her son Dinesh (PW-3), Gauri Hazam, who has also admitted that the deceased used to take liquor. Further Gauri Hazam has never said that her daughter in law came in the morning rather he has said that his grandson came to him in the next morning without disclosing the fact that his father has been assaulted by Bhuneshwar Mahto upon which Gauri Hazam has said that his father might have gone to some relatives’ house and as such the credential of sole eye-witness Sita Devi is under serious doubt and cannot be accepted. 24. 24. In the aforesaid background the benefit of doubt is given in favour of the appellant, Bhuneshwar Mahto, as this is a case where no injury was found on the person of the deceased and the doctor has opined that death is due to asphyxia due to drowning. The deceased might have fallen inside the well himself and false case has been instituted with such delay. 25. In the result, the appellant Bhuneshwar Mahto is given benefit of doubt by setting aside the impugned judgment of conviction and order of sentence dated 23.12.2003 passed by learned Sessions Judge, Hazaribagh in Sessions Trial No. 262 of 1997 in connection with Sadar Mufassil P.S. Case No. 5/1997 consequent G.R. No. 28 of 1997, the appellant, Bhuneshwar Mahto is acquitted of charge under Section 324 of the Indian Penal Code and the appellant who is on bail is discharged from liability of his bail bond. 26. The present Appeal is allowed. 27. Let the lower court record be sent to the court concerned along with a copy of this judgment.