JASIM MIAN AND ANR. AND Vs. STATE OFBIHAR

JUDGEMENT

(1.) APPELLANTS Jasim Mian and Mokhtar Mian in Cr. Appeal No. 288 of 2000 (R) and appellants Aziruddin Mian alias Azharuddin Mian, Ayub Mian, Khurshid Mian, Anwar Mian and Abdul Mian alias Dulla Mian in Cr. Appeal No. 289 of 2000 (R) have preferred these appeals against the judgment and order of conviction and sentence dated 10th July, 2000 and 12th July, 2000 respectively, passed by Smt. Vidyut Prabha Singh, learned 2nd Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 485 of 1998, whereby and whereunder, the appellants have been convicted under Sections 302/34 and 201/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code and to pay a fine of Rs. 5,000/ - (five thousand) each and in default of payment of line, to undergo rigorous imprisonment for three years, with a direction that half of the realized fine will be paid to the informant Bina Devi. The learned 2nd Additional Sessions Judge however, did not pass any separate sentence for the offence under Section 201/34 of the Indian Penal Code.

(2.) THE prosecution case, which is based on the basis of the fardbeyan (Ext. 4) of the informant Bina Devi (PW 18), recorded by S.I. Anuj Kumar (PW 16) of Barkakhana Police Station on 14.8.1997 at 10 -00 a.m. near Dadi Dumuhani, wherein she has stated that her husband Jageshwar Singh on Monday's morning went Ranchi, taking vehicle to bring sulphate (manure), informing that he will return home on Wednesday. When he did not return, then her elder son Prahlad Singh alias Makhu Singh went to Village -Barkagaon to bring his father on Wednesday on Motorcycle. When he also did not return till 7.00 p.m., then the informant along with her daughter Sarita Devi (PW 19), taking lantern, went in search of her husband and son up to Dadi pond. They heard alarm of "chhekco, idhar gaya udhar gaya" arid they also saw the torch light flashed off and on. Out of fear, the informant and her daughter returned home and remained restless throughout the night. In the morning at 5.00 a.m. her younger son Prakash was sent on cycle along with Haroon in search of her husband and son to Village -Barkagaon. At about 6.30 p.m. Prakash returned home from Barkagaon and informed that his father and brother had left Barkagaon, taking cycle from Jitendra (PW I), as their motorcycle developed some mechanical defects. In the meantime, Jitendra (PW 1) of Village -Barkagaon also came to her and informed that her husband and son had left Barkagaon at 7.00 p.m. Jitendra returned to his Village -Barkagaon. The informant followed him up to Dumuhani in search of her husband and son. In the meantime, villagers Raghunadan alias Dubal Mahto and Punit Mahto (both not examined) informed that two dead bodies are lying in the ditch of Dumuhani. The informant went there and saw the dead bodies of her husband Jageshwar Singh and son Prahlad Singh in a ditch, where there was water. Their necks were slatted . She alleged that villagers Anwar Mian, Abdul Mian alias Dulla Mian, Azharuddin Mian, Ayub Mian, Khurshid Mian, Rafique Mian, Jasim Mian, Bhola Mian, Sultan Mian, Tasmat Mian and Mokhtar Mian have murdered her husband and son. All these accused were seen together at about 6.00 p.m. going towards Dumuhani from the village. They were also seen roaming in front of her house on motorcycle. In the morning on 14.8.1997 Anwar informed Sarita that now she has become orphan. Her husband had informed the informant that Anwar, Abdul, Azaharuddin and others used to threaten him, when he was going to attend Court in the case, pending in between them. They were pressing her husband to execute bond in the case otherwise he would not be alive in this world. There were two cases pending in between her husband and the named accused persons. Her husband was worried due to threat given by the accused persons. Anwar Mian had taken loan from Land Development Bank but he did not repay the loan and hence he was sent to jail, one and half month prior to the alleged occurrence. He had threatened her husband that when he will be coming out of the jail, then he will teach a lesson to him. After coming out of the jail, Anwar Mian had gone to the door of the informant and had threatened. Her husband was Ex -President of PAES and presently her son Prahlad was the President. Anwar was believing that they had sent him to jail in default of payment of the loan. On the basis of her fardbeyan, a case was registered and formal First Information Report (Ex. 5) was drawn and chargesheet was submitted against eleven accused persons, including the appellants, under Sections 302/201/34 of the Indian Penal Code. However, chargesheeted accused, namely, Bhola Mian, Tasmat Mian and Sultan Mian, absconded. Charges under Sections 302/34 and 201/34 of the Indian Penal Code were framed against Anwar Mian, Jasim Mian, Mokhtar Mian, Khurshid Mian, Azharuddin Mian, Ayub Mian, Abdul Mian and Rafique Mian alias Rafique Hussain.

(3.) ASSAILING the judgment and order of conviction and sentence passed against the appellants in both the Criminal Appeals, learned counsel submitted that the prosecution has examined altogether nineteen witnesses in order to support the prosecution case. Out of them, PWs 1, 2, 11, 13 and 15 are formal witnesses and have proved certain documents. PWs 3, 5, 6, 7, 8, 12 and 14 have not corroborated the prosecution case and hence their attention was drawn under Section 154 of the Evidence Act. Only PW 4 Horil Bhulann, PW 17 Kitti Bhuiyan, PW 18 Devi (informant) and PW 19 Sarita Devi, daughter of the informant, are the material witnesses in this case. PW 9 is the doctor, who conducted the post -mortem examination on the dead bodies of both the deceased and PW 16 Anuj Kumar is the Investigating Officer of this case. Prakash Singh, son of the informant, although had gone in the morning in search of his father and brother, has been examined as formal witness. PW 18, the informant, had met Dubal Mahto (PW 8) and one Punit Mahto, who informed that the dead bodies of her husband and son are lying in the Nala at Dumuhani. She was not informed by them that these appellants had murdered her husband and son. PW 8 Dubal Mahto has not supported the prosecution case and has been declared hostile whereas Punit Mahto has not been examined in this case. PW 17 Kitti Bhuiyan alias Kitka Bhuiyan claims to be the eye witness. He is labourer of the deceased and others also. He (PW 8) had gone to watch seedlings along with Kirtan Pandey (PW 3) and Punit Mahto to Dumuhani where he heard some hue and cry towards eastern side of the canal. They saw the deceased Jageshwar Singh and Prahlad surrounded by these appellants and assaulting them. When he objected, then Anwar Mian threatened him and asked him to flee away from that place otherwise he would be dealt with in the same manner as it was dealt with the deceased. There was enmity in between the deceased and the appellants and this witness (PW 8) was the labourer of the deceased. His evidence remains uncorroborated by the evidence of Kirtan Pandey (PW 3) whereas Punit Mahto has not been examined. He is an interested witness. In the morning the informant (PW 18) was informed by Dubal Mahto and Punit Mahto about the dead bodies of her husband and son, lying in a ditch of water at Dumuhani but they had not named these appellants as assailants of the deceased. PW 4 Horil Bhuiyan had gone to Hazaribagh to attend certain case and while returning home, at Barkagaon he met Jageshwar Singh and his son Prahlad Singh on a cycle. He proceeded on foot. He also met the appellants near Dumuhani. There is no evidence regarding purchase of any fertilizer by Jageshwar Singh from Ranchi. The fertilizer was not found on the cycle which was provided by PW 1 Jitendra Bishwakarma. Thus, the statement that Jageshwar Singh had gone to purchase fertilizer demolishes the prosecution story. The circumstantial evidence has not connected the chain unerringly to lead these appellants to be responsible for committing murder of Jageshwar Singh and his son Prahlad Singh. On these grounds it was submitted that the learned Court below has not appreciated the evidence of interested witnesses, who are on inimical terms with these appellants due to the Sessions Cases, pending in between them and has passed the order of conviction and sentence.