BHAGWAN BHUIYAN Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) These Cr. Appeals have been directed against the judgment of conviction and order of sentence dated 19.04.2005 & 20.04.2005 respectively passed by the Addl. Sessions Judge, F.T.C. V, Hazaribagh in connection with S.T.No. 07 of 2003, corresponding to G.R.No.1635/2002, arising out of Katkamsandi P.S. Case No. 93/2002 whereby all the three appellants have been held guilty for the offences punishable under Sections 302/34 and 341 of the Indian Penal Code and sentenced to undergo R.I. for life under Sec. 302/34 of the Indian Penal Code and to pay fine of Rs. 200.00 each, S.I. for one month under Sec. 341 of the Indian Penal Code. Appellant-Geeta Devi has been further held guilty under Sec. 323 of the Indian Penal Code and sentenced to undergo R.I. for one year.

(2.) The facts emerging from the fardbayan of Jhubri Devi recorded on 11.07.2002 at 8:30 hours near the house of Bhola Ram at village Belergadda is that on 10.07.2002 at about 5 p.m. the informant, her husband and brother-in-law (Bhainsur) had offered 'Puja' and sacrificed a pig weighing 5 k.g. Appellant-Bhagwan Bhuiyan (younger brother of the deceased) was not included in the ceremony because he had not contributed for purchasing pig. Some altercation took place when the appellant-Bhagwan Bhuiyan demanded his share in the 'Meat' of pig. Abuses were hurled from both sides. Thereafter the informant went home. At about 10 p.m. Bhagwan Bhuiyan armed with 'Bhujali', Geeta Devi armed with stick and Mahadeo Bhuiyan @ Ram armed with lathi entered into house of informant, brought out her husband and took him near the house of Bhola Ram. Bhagwan Bhuiyan inflicted injuries to deceased-Pokhan Bhuiyan by means of 'Bhujali' whereas Geeta Devi and Mahadeo Bhuiyan @ Ram caused assault by means of sticks which they were holding. When the informant tried to intervene, she was also assaulted by appellant-Geeta Devi and sustained injury on her right wrist. Thereafter the appellants left the place. On 'Hulla' some people assembled, who after examining Pokhan Bhuiyan, said that he is no more. The matter was reported to the police and fardbayan of Jhubri Devi wife of deceased-Pokhan Bhuiyan was recorded and a case being Katkamsandi P.S. Case No.93/2002, dated 11.07.2002, under Sections 302/341/323/34 of the Indian Penal Code was registered against all the three appellants. The police after due investigation submitted charge-sheet and accordingly cognizance was taken and the case of the appellants was committed to the court of sessions and registered as S.T.No.07/2003. Charges under Sections 302/34 and 341 of the Indian Penal Code against all the three appellants and separate charge under Sec. 323 of the Indian Penal Code against appellant-Geeta Devi were framed to which they pleaded not guilty and claimed to be tried. The prosecution, to substantiate the charges examined altogether 10 witnesses. Learned Trial Judge placing reliance on the evidence and documents available on record held the appellants guilty and inflicted sentence against them as indicated above.

(3.) Learned Counsel appearing for the appellants has submitted that prosecution has miserably failed to bring home the charges framed against the appellants. No independent witness has supported the prosecution case. Suraj Ram (P.W.1) is hearsay witness, Suresh Ram (P.W.2) and Saryu Ram (P.W.4) have been tendered for their cross-examination, Nago Ram (P.W.3) and Chhedi Ram (P.W.6) have turned hostile. They have not supported the prosecution case. Dr. Girindra Kumar Singh (P.W.7) has proved injury report (ext. 1). He has described the injuries caused to informant-Jhubri. Bhola Ram (P.W.8) and Mathura Rai (P.W.10) are formal witnesses. Dr. Pranay Mahar (P.W.9) had conducted postmortem examination on the dead body of the deceased-Pokhan Bhuiyan and he has proved postmortem report as ext. 2. I.O. has not been examined. It is submitted that entire prosecution case hinges on the sole testimony of Jhubri Devi (informant) who is widow of the deceased and highly interested witness. The learned Trial Judge has mis-appreciated the evidence of P.W. 5 and recorded the conviction only on the testimony of P.W.5. It is pointed out that statement of Jhubri Devi is neither reliable nor consistent. Her deposition carries full of contradictions. She has introduced a new story in Court which is not appearing in the fardbayan. Genesis of occurrence as well as place of occurrence have not been proved. In this context non-examination of the I.O. has become fatal to the prosecution. Fardbayan, seizure list and inquest report have also not been proved because of non-examination of the Investigating Officer. Mathura Rai (P.W.10) happens to be Advocates' clerk and he has formally proved the fardbayan but that will not serve the purpose and the contention made therein cannot be read in evidence. It reveals that seizure list was prepared and L.T.I. of the witnesses had been taken but what was seized has not been proved due to non-examination of the I.O. Jhubri Devi in para 1 of her deposition has stated that 'Puja' was organised in the house of her parent Nago Ram. At about 10 p.m. when she along with her husband and children was returning home, on the way she was intercepted by the appellants, who demanded share in the meat of pig. Thereafter appellant-Bhagwan Bhuiyan caused assault to Pokhan Bhuiyan by means of sword and Mahadeo Bhuiyan @ Ram assaulted by means of 'Lathi'. She again says that sword is also known as 'Bhujali'. Geeta Devi caused assault to her by means of stick. By referring the contention made in the fardbayan, it is submitted that Jhubri Devi has introduced a new story that 'Puja' was offered in her parents' house whereas in the fardbayan she has stated that 'Puja' was organised by her husband and Bhainsur in which they had sacrificed a pig. Appellant-Bhagwan Bhuiyan was not included in that 'Puja' because he had not contributed for purchasing the pig. Some altercation took place at about 5 p.m. when appellant-Bhagwan Bhuiyan and his wife demanded their share in meat. According to informant the matter had come to an end and she went home. In the fardbayan she said that again at about 10 p.m. the appellant-Bhagwan Bhuiyan and his wife and Mahadeo Bhuiyan @ Ram entered in her house, compelled her husband to come out from the house and brought him near the house of Bhola Ram and caused assault by means of Bhujali, Lathi etc. Therefore, contradictory story has been given by the informant regarding manner of occurrence. In the fardbayan she says that they had offered 'Puja' to their 'God' but in her deposition in Court she says that they had offered 'Puja' for ghost. According to fardbayan Pokhan Bhuiyan was dragged out from his house and subjected to assault near the house of Bhola Ram but according to deposition in court the occurrence of assault took place on the way while the informant with her deceased husband was returning home from her parents house. The evidence of informant is not reliable for various reasons such as Bhola Ram has not supported the prosecution case and he has pretended himself as a formal witness although the informant says that the occurrence continued for about an hour and she had also raised alarm which attracted the nearby people. According to evidence, the nearest house from the place of occurrence is the house of Bhola Ram. Chhedi Ram (P.W.6) has turned hostile and he did not support the prosecution case. P.W. 2 and P.W. 4 have been tendered for their cross-examination. The informant has disclosed the name of Nago Ram in her deposition in Court and said Nago Ram has been examined as P.W. 3 but he did not say that any 'Puja' was organised at his residence. He did not support the prosecution case to any extent. According to fardbayan, people had assembled at the place of occurrence just after the assault but in her deposition she says that in the early morning at about 3 a.m. people and Chaukidar had come to the place where dead body was lying. So there are vital contradictions in the statement of P.W.5 and she is not consistent in her statement. Besides the above, due to non-examination of the I.O., fardbayan, seizure list and inquest report have not been proved. Since place of occurrence has not been pin pointed by the informant, again non-examination of the I.O. has become important. The informant did not disclose the first incident in her deposition in Court. Considering all these aspects, learned Counsel has referred the judgment reported in 2006 (11) S.C.C. 323, Bhimapa Chandappa Hosamani & Ors. Vs. State of Karnataka and submitted that conviction can be recorded on the testimony of sole eye-witness but then it must be reliable, consistent, convincing and inspiring confidence. To uphold the conviction based on single testimony, the Court has to take all precautions and try to search out some sort of corroboration if available on record. The statement of Jhubri Devi is neither consistent nor convincing rather full of contradictions and, therefore, conviction recorded on sole testimony of Jhubri Devi is not sustainable. Needless to mention that no witness has supported the version of informant-Jhubri Devi.