MUNDRIKA CHAMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) MUNDRIKA Chamar, Budhan Bhuian, Bhola Bhuian and Ram Swaroop Bhuian @ Swarup Bhuian, the four appellants before us, have in this appeal assailed the Judgment and order dated 29 -11 -1986 passed by the 1st Additional Sessions Judge, Aurangabad, in Sessions Trial No. 7 of 1984/37 of 1984 convicting and sentencing the appellants to undergo R.I. for life under Sections 302/149, I.P.C, Appellant Bhola Bhuian has further been convicted and sentenced to undergo R.I. for five years under Section 3 of Explosive Substances Act but the sentences passed against him have, however, been ordered to run concurrently.

(2.) THE brief facts of the case are that on 3.5.82 at about 6 a.m. deceased Ramadhar Singh along with Overseer and Amin had gone to Hazari Bandh, P.S. Kutumba, District Aurangabad, for measurement of soil. At about 8 a.m., informant Kuldeep Singh (P.W. 3), who is the brother of deceased also went there. On the same day at about 10 a.m. the appellants along with others came from the side of village Jaura and Bhola Bhuian hurled a bomb on deceased Ramadhar Singh causing injuries to him. The informant and deceased then, in order to save themselves, ran towards north -west whereas the Overseer and Amin ran towards eastern side. The appellants and their companions after chase caught hold of deceased and the informant could not see who amongst the appellants assaulted the deceased but he heard sound of explosion of two bombs and he came running to Bhaluari and after some time when the appellants and their companions returned back, he went to the place where he had left his brother and found the dead body of his brother lying on the ground with number of injuries on his body. It is said that occurrence was witnesses by Sadhu Sharan Singh (not examined), Ram Punja Singh (P.W. 1) and Bhim Singh (not examined). The fardbeyan (Ext. 3) of informant was recorded by S.I. R.N. Chaubey at Amba Out Post and the case was registered against the appellants, namely, Mundrika Chamar, Budhan Bhuian and Bhola Bhuian as well as against Krit Bhuian and Jagdish Bhuian, who all were named in the fardbeyan and 15 unknown persons,. After investigation, police submitted charge -sheet, in parts, against all the appellants including appellant Ram Swaroop Bhuian (a) Swarup Bhuian, who was not named, in the F.I.R., four others, namely, Mahadeo Bhuian, Dargahi Bhuian, Suresh Ram, Awadesh Ram and against others showing them abscondars. The cognizance of the case was taken and the case was committed to the Court of Session where the appellants along with Dargahi Bhuian, Suresh Ram, Mahadeo Bhuian and Awadhesh Ram were put on trial and charges against all of them was framed under Section 302/149, I.P.C. Appellant Bhola Bhuian was further charged under Section 3 of the Explosive Substances Act and the Court: below after trial found Awadhesh Ram, Suresh Ram, Mahadeo Bhuian and Dargahi Bhuian not guilty and acquitted them but so far the case of appellants is concerned, all the four appellants have been convicted and sentenced to undergo rigorous imprisonment for life under Sections 302/149, I.P.C. and Bhola Bhuian has further been convicted and sentenced to undergo R.I. for five years under Section 3 of the Explosive Substances Act but both the sentences passed against him have, however, been ordered to run concurrently.

(3.) IN order to prove its case, the prosecution has examined 11 witnesses. Pradeep Kumar Venna (P.W. 1) is a formal witness who as proved fardbeyan (Ext. 1) and formal F.I.R. (Ext. 2). Kuldeep Singh (P.W. 3) is the informant. Dr. K. K. Singh (P.W. 2) is the doctor who had conducted autopsy. Gauri Shankar Lal (P.W. 7) and Jai Govind Singh (P.W. 9) are Judicial Magistrates who had held T.I. parade of suspects. Ajay Kumar Mishra (P.W. 4) has proved sanction of prosecution granted by the District Magistrate, Aurangabad, for prosecution under Section 3 of Explosive Substances Act. Ram Niwas Chaubey (P.W. 8) is the I.O. of the case. Ragho Narayan Singh (P.W. 4) is a hearsay witness. Kamta Prasad Singh (P.W. 5) is also witness on the point of sanction of prosecution granted by the District Magistrate for prosecution under Section 3 of Explosive Substances Act, Upendra Singh (P.W. 10) is a formal witness who has proved the requisition (Ext. 7) sent by the police to District Magistrate, Aurangabad with a prayer for grant of sanction for prosecution under Sections 3 and 5 of the Explosive Substances Act. It appears that the trial Court examined Pradip Kumar Verma (P.W. 1), Dr. K.K. Singh (P.W. 2) and the informant Kuldip Singh (P.W. 3) when four accused -persons, namely, Suresh Ram, Awadhesh Ram, Mahadeo Bhuian and Dargahi Bhuian, who have been acquitted and appellants Bhola Bhuian, Mundrika Chamar and Ram Swaroop Bhuian @ Swarup Bhuian were put on trial. After it, when appellant Budhan Bhuian was arrested and forwarded to Court, he was also put on trial with the aforesaid appellants and other accused -persons and as stated above, by the time appellant Budhan Bhuian was put on trial along with other accused -persons, the Court had already examined P. Ws. 1, 2 and 3. The Court, therefore, again examined P.W. 2 Dr. K.K. Singh and P.W. 3 Kuldeep Singh, the informant and again depositions of these witnesses were given the same number as P.Ws. 2 and 3 in the series of prosecution witnesses. The Court did not recall P.W. 1 Pradeep Kumar Verma probably because he was a formal witness. Ram Pujan Singh was examined as a witness after Budhan Bhuian was also put on trial with other accused persons but his deposition has been numbered as P.W. 1 whereas the Court had already given this number to Pradeep Kumar Verma examined earlier. The Court after putting Budhan Bhuian on trial with other accused -persons should have recalled the witnesses who were already examined earlier for their examination -in -chief and cross -examination but instead of doing so it examined two witnesses, namely, Dr. K.K. Singh and informant, Kuldeep Singh afresh giving them same prosecution witnesses number already given earlier but this procedure which is merely an irregularity has not caused any prejudice to defence because on both occasions the defence got opportunity to cross -examine these witnesses. Therefore, I find that, it has not adversely affected the case of the prosecution.