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Jharkhand High Court · body

2019 DIGILAW 562 (JHR)

Matin Mian v. State Of Bihar

2019-02-26

APARESH KUMAR SINGH, KAILASH PRASAD DEO

body2019
JUDGMENT 1. Heard learned counsel for the appellants Mr. A. S. Dayal and learned Additional Public Prosecutor, Mr. Anand Kumar Pandey. 2. There are four appellants in this appeal who have been convicted by the impugned judgment dated 18.05.1996 for the charge under Section 302/201 of the Indian Penal Code in Sessions Trial No. 190 of 1987 passed by the learned Court of 1 st Additional Sessions Judge, Palamau at Daltonganj and sentenced to undergo life imprisonment under Section 302 of the I.P.C while no separate sentence has been imposed under Section 201 of the I.P.C vide the impugned order of sentence dated 18.05.1996. One of the co-accused Kunan Khan has been acquitted by the learned Trial Court. 3. The fardbeyan of Sheobrat Bhuian (PW.1) of village Pakariyadih under Manatu Police Station recorded by Sub Inspector Brajesh Singh of Manatu Police Station on 05.07.1996 at 15.30 Hrs. at village Pakariyadih is the basis for institution of the formal F.I.R bearing Manatu P.S. Case No. 40 of 1986 under Sections 302/201/120B of the I.P.C against 5 named accused persons namely (i) Motin Mian, (2) Kunan Khan, (3) Azimuddin Mian @ Waziuddin Mian, (4) Safique Mian and (5) Yashin Mian, all of whom were sent up for trial on submission of the charge-sheet no. 45/1986 dated 07.10.1986 under Section 302/201/120B of the I.P.C. 4. The informant in his fardbeyan has inter alia alleged as follows: That on the previous Sunday 29.06.1986 while he was working in his field at around 8.00 a.m., his wife called him to the house stating that someone is waiting for him. On return he saw Alauddin Ansari who used to work at Manatu Hospital present there. He requested the Informant to bring the harvested pulses (Arhar) from the village Raheya, which was given on bataidari to one Baishaki Bhuian. Informant went there and brought harvested pulses and was returning with Baisakhi Bhuian and his son when in the gully (passage) he saw Rameshwar Bhuian son of Kuila Bhuian talking with son of Satara Mian i.e., Motin Mian. When he proceeded further outside the village, he saw five persons following them along with Rameshar Bhuian. The informant states that they returned (informant and two others) at 1.00 p.m. to his house and handed over the pulses to Ansari Saheb and was talking to him. When he proceeded further outside the village, he saw five persons following them along with Rameshar Bhuian. The informant states that they returned (informant and two others) at 1.00 p.m. to his house and handed over the pulses to Ansari Saheb and was talking to him. At that time Motin Mian son of Satara Mian, Azimuddin Mian son of Satara Mian, Yashin Mian son of Alishera Mian, second son of Kuramat Mian, all of village Raheya armed with Knife and lathi came there and Motin Mian caught hold of Ansari Saheb by the hair on his head and after pulling his head down inflicted a knife blow on his back. On protest by the Informant, son of Kuramat Mina ran after him when informant hid himself in his house. It is further alleged by the Informant that Ansari Sahab was killed and put on a Khatia (bed) and taken away towards the northern direction by them. Son of Kuramat Mian caught hold of a spade (Kudali) from the house of Rameshwar Bhuian and scraped the earthen floor, took out the blood stained soil and sprinkled some paddy over it. He took away the scraped blood stained soil in a basket. This incidence was seen by Baisakhi Bhuian (P.W.4), his son Sheo Nandan Bhuian, who has been examined as P.W.6, informants daughter Sita Devi examined as P.W.3 and wife of Informant Yasoda Devi (P.W.2). Since these accused persons had threatened the Informant and his family members, they did not disclose it to anyone. 5. The Investigation commenced on institution of the formal F.I.R leading to submission of the charge-sheet no. 45/1986 dated 07.10.1986 under Section 302/201/120B of the I.P.C. finding the case true against the above named accused persons. Cognizance was taken thereafter and the case was committed to the Court of Sessions. Before the Court of Sessions, charges were framed against all the five accused persons under Section 302/201 of the I.P.C on 03.12.1990. The charges were read over and explained in Hindi to the accused persons to which they pleaded not guilty and claimed to be tried. Thus the accused were put up for trial. 6. During course of trial, prosecution had examined 9 witnesses in order to prove the case, which are as under: I. P.W.1 Sheobrath Bhuian is the informant who has claimed to be the eye witness to the occurrence. II. Thus the accused were put up for trial. 6. During course of trial, prosecution had examined 9 witnesses in order to prove the case, which are as under: I. P.W.1 Sheobrath Bhuian is the informant who has claimed to be the eye witness to the occurrence. II. P.W.2 Yasoda Devi is the wife of the informant who was cited as the eye witness to the occurrence but was declared hostile on the request of the prosecution and thereafter cross examined by the prosecution as well as by the defence and put certain questions by the Court. III. P.W.3 Sita Devi is the daughter of the Informant who was also declared hostile on the request of the prosecution. IV. P.W.4 Baisakhi Bhuian is the brother-in-law of the informant and bataidar of the deceased who is alleged to have come along with the informant with the harvested pulses from village Raheya to the house of the informant. He has also turned hostile during trial and declared as such. V. P.W.5 Sahim Mian has been tendered by the prosecution. VI. P.W.6 Sheo Nandan Bhuian is the son of Baisakhi Bhuian (P.W.4) also had allegedly accompanied the informant and P.W.4 his father from village Raheya along with the harvested pulses to the house of the informant. He has been declared hostile on the request of the prosecution. VII. P.W.7 Kameshwar Singh is the villager of village Nilo under Manatu Police Station. However, during cross examination he did not support the prosecution case and was declared hostile on the request of the prosecution. VIII. P.W.8 Ramjit Sharma is another witness tendered by the prosecution. IX. P.W.9 Manna Singh was an advocates clerk who has proved the fardbeyan marked as Ext.1 and the formal F.I.R marked as Ext.2. In his cross examination, he has categorically stated that these documents were not written in his presence. Therefore, he was not a competent witness to prove the said documents in terms of Section 47 of the Evidence Act. 7. We find from the evidence on record that the prosecution had not been able to retrieve the corpus delicti i.e., the dead body of the deceased. Therefore, no post mortem on the dead body was conducted by any Medical Officer or proved during trial by the prosecution. We also find that the Investigating Officer of this case failed to appear as a witness during trial. 8. Therefore, no post mortem on the dead body was conducted by any Medical Officer or proved during trial by the prosecution. We also find that the Investigating Officer of this case failed to appear as a witness during trial. 8. Upon conclusion of the evidence, materials brought on record were put to the accused persons during their examination under Section 313 Cr.P.C to which they pleaded innocence and stated that they were not involved in the commission of the offence. 9. On behalf of the defence no witness was examined but two documents were exhibited i.e., the certified copy of the charge-sheet in G.R. Case No. 428 of 1986 marked as Ext. A and the certified copy of the order sheet of G.R. Case No. 428 of 1986 marked as Ext. B. The defence exhibits are in relation to a criminal case against the deceased where he was declared as an absconder. However, defence has not adduced any witness in their support. Some suggestion was made to P.W.1 during his cross examination by the defence to which P.W.1 Sheobrath Bhuian had stated that it is not true that the deceased had run away to escape the rigour of law in a case of 307 I.P.C. 10. Learned Trial Court upon consideration of the evidences on record and submission of the parties came to the opinion that evidence of P.W.1 Sheobrath Bhuian coupled with part of the evidence of P.W.2 Yashoda Devi was adequate to prove the charge under Section 302 and 201 of the I.P.C against all the accused persons except accused Kunan Khan. Thus the appellants before us were held guilty of the aforesaid charges and sentenced in the manner indicated above. 11. Conviction of the appellants has been assailed by the learned counsel for the appellants inter alia on the grounds as under; Prosecution has completely failed to establish its case beyond shadow of all reasonable doubts. Out of nine prosecution witnesses examined, except P.W.1 Sheobrat Bhuian, P.W.2 to P.W.8, which include informants wife Yashoda Devi(P.W.2), his daughter Sita Devi (P.W.3), informants brother-in- law, Baisakhi Bhuian(P.W.4) and Baisakhi Bhuians son Sheo Nandan Bhuian(P.W.6) and other independent witnesses such as P.W.5 Shahim Mian, P.W.7 Kameshwar singh and P.W.8 Ramjit Sharma, all have been declared hostile or tendered. Out of nine prosecution witnesses examined, except P.W.1 Sheobrat Bhuian, P.W.2 to P.W.8, which include informants wife Yashoda Devi(P.W.2), his daughter Sita Devi (P.W.3), informants brother-in- law, Baisakhi Bhuian(P.W.4) and Baisakhi Bhuians son Sheo Nandan Bhuian(P.W.6) and other independent witnesses such as P.W.5 Shahim Mian, P.W.7 Kameshwar singh and P.W.8 Ramjit Sharma, all have been declared hostile or tendered. P.W.9 Manna Singh is not competent witness to prove the fardbeyan and formal F.I.R. As such these two vital documents of the prosecution have not been legally proved. The Investigating Officer has not appeared to testify before the Court. Therefore, the place of occurrence and the circumstances relating to non-recovery of the body of the deceased has not been proved by the prosecution. Whether the deceased actually died or not, has not been proved by the prosecution. This becomes all the more relevant since none of the members of the deceased family has come forward to depose in support of the prosecution case during trial. The documents adduced by the accused themselves show that deceased was an absconder in the eyes of law. Since the corpus delicti was not recovered, there was no post mortem of the body of the deceased which could show the alleged injuries which led to his death. P.W.2 Yashoda Devi though was declared hostile but was cross examined during trial by the prosecution, defence and the learned Trial Court also put certain questions to her. Her answer in cross examination are contradictory to the prosecution case. She has completely discredited herself from being treated as a reliable and trustworthy witness. Prosecution has not been able to explain the huge delay of 7 days in institution of the F.I.R on 05.07.1986, which indicates that occurrence is of 29.06.1986 itself. Appellants were not tried for the charges under Section 302 read with Section 34 of the I.P.C or 149 of the I.P.C to show either existence of common intention or common object in perpetrating the act. As such, in the wake of completely insufficient material brought by the prosecution, charge under Section 302 of the I.P.C has not been proved by the prosecution against any of the appellants. Thus, the conviction of the appellants is wholly untenable in law and fit to be set aside. 12. Learned Additional Public Prosecutor has laboured hard to support the case of the prosecution. Thus, the conviction of the appellants is wholly untenable in law and fit to be set aside. 12. Learned Additional Public Prosecutor has laboured hard to support the case of the prosecution. He submits that the even one prosecution witness if found reliable and cogent, is sufficient to prove the guilt. He has placed heavy reliance on the evidence of the informant, P.W.1 Sheobrat Bhuian. He submits that the place of occurrence and the manner of occurrence have been properly described and proved by P.W.1. Mere failure of other prosecution witnesses to support his statement during trial would not discredit the truthfulness and cogency of his evidence. Learned Additional Public Prosecutor submits that wife of the informant Yashoda Devi, P.W.2 during her cross-examination, has clearly stated that she was not able to tell the truth due to threat by the accused persons. Her statement during the cross-examination should be treated as a grain separated from chaff to test her credibility as a witness to the occurrence. Learned Trial Court has therefore not out rightly rejected the deposition of P.W.2. Though she has turned hostile, but the part of her statement taken together with the statement of P.W.1 establishes the charges against the accused persons. Learned Additional Public Prosecutor has however not been able to justify the absence of Investigating Officer or the circumstances showing non-recovery of the dead body of the deceased (corpus delicti) which was an important ingredient to establish the charge of murder as against these accused persons. Learned Additional Public Prosecutor has submitted that the delay in lodging of the fardbeyan was due to threat extended by the accused persons to the informant and his family members. Therefore, delay in institution of the FIR has satisfactorily been explained. 13. We have heard learned counsel for the appellants and learned Additional Public Prosecutor at length; we have also gone through the entire materials on record including the prosecution evidence and the material exhibits brought on record by the defence and also gone through the statement of the accused persons recorded under Section 313 of the Cr.P.C. We have perused the impugned judgment as well. On consideration of the material evidence on record, as has been noted in the preceding paragraphs as well, we find that the prosecution has adduced 9 witnesses in its support, but except the informant, all other witnesses have either turned hostile or have been tendered. P.W.2 Yashoda Devi, wife of the informant has been declared hostile, though she was cited as an eyewitness by the informant himself in his fardbeyan. The testimony of P.W.2 read in entirety does not inspire confidence in the minds of this Court to accept part of his statement as reliable truth of the occurrence. In fact, at one stage, during cross-examination by the court, she says that she was suffering from fever for 15 days and in a state of unconsciousness and was lying inside the house. Therefore, she could not witness the incidence. The incidence was narrated to her after one month by her own husband as if she remained unconscious for one month. Reliance upon such untrustworthy witness is unsafe. We further find that the informants daughter, P.W.3 Sita Devi who was also cited as an eyewitness in the fardbeyan, has not supported the case of the prosecution and was declared hostile. P.W.4 Baisakhi Bhuiyan, brother-in-law of the informant and his son P.W.6 Shiv Nandan Bhuiyan, (Batairdar of the deceased), both of whom are alleged to have accompanied the informant from their house at village Rahiya to the house of the informant while carrying harvested pulses, have not supported the case of the prosecution. Therefore, they were declared hostile. We further find that one independent witness, P.W.7 Kameshwar Singh, adduced by the prosecution, has turned hostile. Remaining two other material prosecution witnesses P.W.5 and P.W.8 have been tendered by the prosecution. We further find that P.W.9 Manna Singh, an Advocate Clerk, in his cross-examination, categorically stated that the documents i.e. fardbeyan (Ext.1) and formal FIR (Ext.2) proved by him, were not written in his presence. Thus, he was not competent witness to prove the documents in terms of section 47 of the Evidence Act. 14. We now turn to the testimony of P.W.1 who is the sole prosecution witness and the informant upon whom the entire prosecution case rests. Thus, he was not competent witness to prove the documents in terms of section 47 of the Evidence Act. 14. We now turn to the testimony of P.W.1 who is the sole prosecution witness and the informant upon whom the entire prosecution case rests. Before delving into his deposition, it is noteworthy to observe that the prosecution had unfortunately failed to examine the Investigating Officer of this case and thus, not proved the place of occurrence or the circumstance relating to non-recovery of the dead body of the deceased (corpus delicti) which was the material ingredient to prove the occurrence. We further find that none of the family members of the deceased Alauddin Ansari have come forward to support the case of the prosecution. Since the body of the deceased was not recovered, there was no postmortem conducted on it and infliction of alleged injury leading to death have also not been proved by the prosecution. Therefore, what remains is the statement of P.W.1, the informant who has lodged the fardbeyan after seven days of the occurrence i.e. 29.06.1986. Fardbeyan of the informant was recorded on 05.07.1986. This unusual delay remains unexplained on behalf of the prosecution. If there was a threat on the informant or his family members after commission of the crime, there is no reason why it should have been reported after 7 days again. From perusal of the statement of P.W.1 during trial, we find that though, he has supported the case set up through his fardbeyan, but his statements are not corroborated by any other eyewitness i.e. P.Ws. 2, 3, 4 & 6 apparently named by him in the fardbeyan itself. Informant has also not been able to project any particular motive or reason for the crime. In the absence of any evidence on behalf of the family members of the deceased, showing the background of enmity or the reasons for the crime, the Court has practically no material to understand the motive or intent on the part of these appellants for commission of the offence. From perusal of the documents, as suggested by the P.W.2 himself also, it appears that the deceased was facing a criminal case and has been declared absconder. The informant in his cross-examination at one stage also stated that his own son Bhageshar, a Chowkidar, was lying unconscious for 15 days due to snake bite. From perusal of the documents, as suggested by the P.W.2 himself also, it appears that the deceased was facing a criminal case and has been declared absconder. The informant in his cross-examination at one stage also stated that his own son Bhageshar, a Chowkidar, was lying unconscious for 15 days due to snake bite. Such incidence of snake bite had happened on the previous night of the occurrence. His son was reportedly living in the house of one Kedar Mahato in the same village Pakriyadih. He had heard about the snake bite, gone to see him and immediately returned to his house on the same day before dawn. He had sent Mushahar for his treatment. In his cross- examination at para-12, he has referred to Baisakhi Bhuiyan, his brother-in- law, but denied about any deed executed by Prayag Buiyan in the name of Motin Mian or that on that piece of land, Baisakhi Bhuiyan was carrying on cultivation. This witness has denied having knowledge of any of the neighbourers of his in-lawss place at village Raheya. At para 13 of his cross examination, this witness has denied knowledge of the name of the widow of the deceased as Jamila Khatoon. From the evidence of this witness, we find that he has failed to prove that as a result of injury caused due to knife inflicted on the back of the deceased, blood stain were thrown on any other portion of the house such as wall etc. Except the fact that blood stained soil was scraped by one of the accused persons, there are no other evidence of presence of blood at the alleged place of occurrence shown through the informant in his deposition. He has denied any knowledge of any case under Section 307 I.P.C against the deceased. He has also denied that deceased was roaming around as absconder to escape the rigour of laws. 15. Upon careful analysis of the evidence of P.W.1 Informant, we are unable to satisfy ourselves that the ingredients of the offence of murder against the accused/appellants have been proved beyond shadow of all reasonable doubts. As noticed herein above, the place of occurrence has not been established in the absence of examination of the Investigating Officer and other prosecution witnesses cited as eye witness namely P.W.2 Yashoda Devi, P.W.3 Sita Devi, P.W.4 Baisakhi Bhuian and P.W.6 Sheo Nandan Bhuian turning hostile. As noticed herein above, the place of occurrence has not been established in the absence of examination of the Investigating Officer and other prosecution witnesses cited as eye witness namely P.W.2 Yashoda Devi, P.W.3 Sita Devi, P.W.4 Baisakhi Bhuian and P.W.6 Sheo Nandan Bhuian turning hostile. The circumstances to prove non-recovery of the body of the deceased have not been established by the prosecution. The prosecution had on the basis of the evidence on record not been able to substantiate the charge under Section 302 of the I.P.C or 201 of the I.P.C simplicitor. 16. Considered in totality, we are unable to sustain the findings of the learned Trial Court holding these appellants guilty of serious charge of murder based on the testimony of P.W.1 Sheobrat Bhuian alone and part of the testimony of Informants wife P.W.2 Yashoda Devi, a hostile witness. As such, the impugned judgment of conviction and order of sentence dated 18.05.1996 passed by 1 st Additional Sessions Judge, Palamau at Daltonganj is set aside. The appeal is allowed. 17. Appellants are on bail. They are discharged from the liability of their bail bonds. Let the lower court records be sent down to the court below forthwith along with copy of the judgment.