Birju Manjhi vs The State of Bihar

Gopal Prasad, J.—1. Heard learned counsel for the appellant and the State.

The appellant Birju Manjhi has been convicted under Section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 5000/-. He has further been convicted under Section 397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and in default of payment of fine, to undergo imprisonment for 6 months. However, it has been ordered that both the sentences shall run concurrently.

The prosecution case, as alleged in the fardbeyan of the informant Hurava Devi, is that in the night of 11th September, 1990 at about 12 o''clock in the midnight, while she was sleeping in outer Barandah, she heard the sound of her father-in-law Daharu Manjhi to save and he started knocking the door. In the meantime Dayavanti Devi opened the door then accused persons namely Ishwar Mahto, Birju Mahto, Ram Kishun Mahto and two more unknown miscrants, Ghonu Manjhi, Nuneshwar Manjhi, Mauji Manjhi and Riko Manjhi armed with lathi, rod and dagger entered into the house along with 4/5 unknown persons. The informant could not identify the miscreants, who were out of the house. The accused persons caused injury to her father-in-law Daharu Manjhi and the said Daharu Manjhi died due to injuries. The further case is that appellant Birju Mahto assaulted her sister-in-law Dayavanti Devi by dagger on her chest. The accused persons also assaulted the informant by lathi and thereafter all the accused persons took away the boxes containing clothes, jewelleries and papers of the land. When the villagers came then the accused persons fled away after exploding the bomb. The further case is that Dayavanti Devi got injured, who was taken to Katoriya hospital for treatment. The motive of the occurrence is alleged that appellant Birju Manjhi is the husband of Nanad of the informant and the marriage was solemnized about 10 years back, the gauna was performed about 4 years after the marriage and since then it is alleged that the Nanad is subjected to cruelty and even assaulted. A panchayati was also held in this connection in the month of Shravan. The further case is that in the month of Shravan the bidai of the Nanad of the informant was not made on which she was threatened by Birju Manjhi to kill her and it is alleged that with regard to the same threat, the occurrence has been committed in the night by forming an unlawful assembly with deadly weapons and Nanad of the informant was injured by dagger.

The fardbeyan of the informant Hurava Devi was recorded by Sub-Inspector, K.P. Keshri of at 12.30 hours on 12.09.1990. On the fardbeyan of the informant, the First Information Report was lodged and the investigation proceeded by K.P. Keshri, the officer-in-charge of Chandan P.S. Thereafter the police after investigation submitted charge sheet, on which cognizance was taken and the case was committed to the Court of Session and after commitment, the charges were framed under Sections 460, 380, 323, 324 and 307 of the Indian Penal Code and the case was sent to the Court of Assistant Sessions Judge, Banka for trial. After the transfer of the case to the Court of Assistant Sessions Judge, the witnesses were examined however, taking into consideration the evidence of the witnesses, the Assistant Sessions Judge found that the witness Dayavanti Devi has supported the prosecution case as alleged in the First Information Report and from her evidence, it is apparent that the case of murder and dacoity is make out as in the dacoity case, the owner of the house has also been murdered and hence it was requested that the case be transferred to the competent Court of 2nd Additional Sessions Judge, Banka as is the competent Court to proceed with the case and thereafter the case was transferred to the Court of 2nd Additional Sessions Judge, Banka and there the charges were framed under Sections 396 of the Indian Penal Code against appellant Birju Manjhi as well as the other accused persons namely Ishwar Manjhi and Ghanshyam Manjhi. However, it appears that Ishwar Manjhi and Ghanshyam Manjhi died during the course of trial. The charges under Sections 324 and 307 of the Indian Penal Code have also been framed against the appellant Birju Mahto. However, charge under Section 323 of the Indian Penal Code has been framed against accused Ghanshyam Manjhi but he died during course of trial. Thereafter the trial proceeded and during course of trial, 8 witnesses were examined by the prosecution.

P.W.1 Hurava Devi is the informant. P.W. 2 Devayanti Devi, P.W.3 Suraji Devi, P.W.4 Kailash Prasad Singh is a Dresser in the District Hospital, Banka and proved the postmortem report. The said postmortem report has been proved formally and has deposed that the doctor, who has conducted the postmortem examination, has already been died.

P.W.5 Dr. Umesh Kumar Niraj has proved the postmortem report, which is in the writing of Ram Pyare and has stated that in the said injury report, the injuries were found to be incised on the back of shoulder, upper part of the back of left side, lower part of left side and on parietal bone scalp deep. The cause of death was shown to be shock and haemorrhage due to ante mortem injury. Time elapsed since death 36 to 48 hours and the said postmortem report was under the signature of Ram Pyare.

P.W.6 Uday Kumar Verma has proved the injury report, issued by the police and has formally proved the injury report issued by the police and has stated that the person who has issued the injury report has already been died.

P.W.7 Singheshwar Manjhi has come to depose that on the date of occurrence he was a student and was living in a hostel and his brother-in-law came and disclosed about the occurrence at his house then he came and found the injury on the person of his sister Devayanti Devi and she disclosed about the occurrence. However, this witness is a hearsay witness.

P.W.8 is Heera Lal Yadav is the Mukhiya, has come and deposed that Hurava Devi has given her statement to Daroga before him and has proved his signature on the written report, which is marked as Ext. -4. However, this witness is not an eyewitness of the occurrence.

The trial Court took into consideration the evidence of witnesses and convicted the appellant as mentioned above.

Learned counsel for the appellant, however, challenged the judgment of conviction and order of sentence recorded by the trial Court and it has been contended by the learned counsel for the appellant that admittedly the appellant is son-in-law of the deceased and husband of Devayanti Devi. It has also been admitted case that the relation between the husband and wife was strained and in this regard earlier also a dispute was there and a panchayati has also been held. However, it has been submitted that it is unnatural that the husband will come to commit dacoity in sasural and as such, the prosecution story itself is not believable. It has further been contended that neither the Investigating Officer has been examined to prove the objective evidence of dacoity nor witness P.W.3 mother-in-law has supported the prosecution case. It has further been contended that only evidence regarding the occurrence is the evidence of P.W.1 and P.W.3 who are none else but the Sarhaj of the appellant and their evidence are suffers from credibility and liable to be rejected. It has further been contended that none of the witnesses of the village has come forward to support the prosecution case about any dacoity and further the evidence regarding theft has been occurred after the assaults on the deceased and it is not a case that the murder has been committed during commission of dacoity rather the dacoity committed after the murder. The learned counsel for the appellant has further submitted that though there is allegation of assault by the appellant but appellant has only assaulted on the informant and not to the deceased and hence, contended that the judgment of conviction and order of sentence recorded by the trial Court are not sustainable.

Learned counsel for the State, however, submits that P.W.1, P.W.2 and P.W.3 have specifically stated about the assault made the appellant and P.W.1 and P.W.2 supported the prosecution case against the accused persons regarding fleeing away with house hold articles like clothes and jewelleries and there is cogent evidence adduced by the witnesses P.W.1 and P.W.2 in support of prosecution case.

Having regard to the respective submissions, I proceed to consider the evidence of the witnesses in the light of the submissions made above. However, as per the prosecution case as alleged in the First Information Report by the informant (P.W.1) that in the night of 11th September, 1990 at about 12.00 o''clock, while the informant was sleeping, she heard the cry of her father-in-law Daharu Manjhi, thereafter Dayavanti Devi opened the door then accused persons armed with lathi, dagger, bhala entered into the house. The informant has named the accused persons as Ishwar Mahto, Birju Mahto, Ram Kishun Mahto and two ghatwar, Ghonu Manjhi, Nuneshwar Manjhi, Mauji Manjhi and Riko Manjhi armed with lathi, rod and dagger entered into the house in the meantime Ishwari Mahto assaulted Daharu Manjhi by bhala. The further alleged that appellant Birju Mahto assaulted Dayavanti Devi by dagger and thereafter the accused persons fled away, taking box containing clothes, jewelleries and papers of the land. However in the first information report, there is no specific allegation that who was armed with which of the weapon. There is general and omnibus allegation that accused persons along with others were armed with lathi, bhala, rod and dagger. However, P.W.1, the informant in his evidence has stated that she was sleeping in the southern verandah and her Nanad Dayavanti Devi (P.W.2) and mother-in-law Suraji Devi (P.W.3) were sleeping in the western verandah. It has further been stated that the father-in-law was crying to save his life thereafter her Nanad Dayavanti Devi opened the door and on opening the door, the father-in-law came inside the courtyard and behind him, the accused persons also entered into the house. It is further alleged that they started assaulting her father-in-law and when her sister-in-law and Dayavanti Devi and she herself went then Dayavanti Devi was assaulted by dagger on his waist by Birju Manjhi. She has further stated that Ishwar Mahto, Birju Mahto, Ram Kishun Mahto, Riko Mahto, Nuneshwar Mahto, Ghonu Manjhi assaulted her father-in-law by bhala and she was also assaulted by them but she could not identify the person who assaulted her. She has further stated that the accused persons took away 3/4 boxes containing clothes, paper of land, jewelleries, sikri, payal etc from her house. She has further deposed that the marriage of her Nanad was solemnized with appellant Birju Mahto and the appellant Birju Mahto did not use to give cloth and food to her Nanad Dayavanti Devi and for that reason Dayavanti Devi used to flee away from her sasural and for which there was some quarrel with regard to bidai of Dayavanti Devi. The further case is that her Nanad Dayavanti Devi was married with the appellant about 7/8 years back and was not blessed with any child and Dayavanti Devi used to flee away as she was subjected to cruelty and was not provided food and after panchayati they used to make bidai of Dayavanti Devi but when she was not provided food and clothes, she used to flee away. However the criticism of this witness that though she has alleged that Dayavanti Devi was assaulted by Birju Manjhi and her father-in-law deceased was assaulted by bhala by all the accused persons, however, the postmortem report of the victim has been formally proved and marked as Ext. -1, which shows that four injuries on the person of the deceased found and all have been caused by sharp cutting instruments:--

"(1) incised wound 2"x1/2"x1.5" over back of the left shoulder

(2) incised wound 1.5"x1/2"x1" upper part of back left side

(3) incised wound 2"x1/2"x1" lower part of back left side

(4) incised wound 1.5"x1/2"x1" over left parietal bone (scalp deep)."

It has been stated that all the injuries have been caused by sharp cutting instruments and caused of death is shock and haemorrhage due to above mentioned injuries. However, those injuries have been said to be sharp cutting weapon. As per evidence of this witness, no injury has been inflicted by bhala or sharp cutting weapon on the person of deceased but there is no penetrating wound mentioned in the postmortem report of bhala as bhala is a penetrating weapon. Further criticism is that the accused persons entered into the house and first they assaulted the deceased, who happens to be father-in-law of the appellant, and thereafter they assaulted his wife Dayavanti and also assaulted the informant and thereafter decamped after taking away the house hold articles. However the prosecution story itself appears to be absurd.

Taking into consideration of the manner of occurrence, it is apparent that the murder and assault was not committed during commission of dacoity rather the allegation of decamping with the articles are after assaulting of father-in-law. However, whether the assault committed prior to dacoity or during dacoity may be immaterial. It is imagine that the accused persons came and assaulted the father-in-law but the appellant left his wife. Though there is allegation of assault by dagger on the person of Dayavanti but the injury on the person of Dayavanti is found to be simple in nature.

However, taking into consideration of the prosecution evidence, it is apparent that the appellant Birju Mahto came to the house to commit dacoity at his sasural and during the course; he murdered his father-in-law, assaulted his wife and thereafter decamped with the box. However, so far as the allegation that the accused persons took away boxes containing clothes, jewelleries and paper of land are also general and omnibus in nature as there is no specific allegation that which of the accused persons took the box. The allegation that the accused persons took away 3/4 boxes is also general and omnibus in nature and there is no specific allegation that who amongst the accused persons took the boxes. Further allegation that the boxes containing clothes, jewelleries and papers of land, however there is no specific detail has been mentioned that what were the clothes and which of the articles kept in the boxes, which were taken away. There is also no detail that which of the papers of land, which were taken by the accused persons. Neither there is any evidence that which of the jewelleries, which were being taken away by the accused persons. Hence, the entire allegation regarding the assault and dacoity has been made without any specific mention of the details of the jewelleries, clothes or papers of land.

P.W.2 Devayanti Devi is the wife of the appellant. However, in her evidence she has stated that her father was sleeping on the door outside the house and the accused persons came and started assaulting. The father started crying to save then she opened the door. She has further stated that the accused persons took his father inside the house and started assaulting. She has further stated that out of them she identified Birju, Ishwar, Ram Kishun, Dhonu Manjhi, Nuneshwar Manjhi, Moji Manjhi, Chandrika Manjhi. She has also not specifically stated that who armed with which of the weapon. Though she has stated that she identified the persons as mentioned above but has not mentioned that who was armed with which of the weapon. However, she has stated that her father was assaulted by dagger, rod, barchi and lathi and hence her evidence regarding the weapon used by the accused persons stands contradicted to the evidence of P.W.1. P.W.1 though has stated that all the accused persons assaulted the deceased by bhala, whereas this witness has stated that the accused persons assaulted her father by dagger, rod, barchi and lathi. She has further stated that Birju assaulted by knife, Ishwar by bhala and Ram Kishun by farsha and hence, the evidence of this witness stands contradictory with the evidence of P.W.1 regarding the manner of occurrence and about weapon used by the accused persons. She has further stated that her father died due to assault and thereafter the accused persons took away the articles of the house. She has further stated that the accused persons took away the boxes which contain clothes, jewelleries and papers of land. However, there is no specific detail about the clothes or details of jewelleries or the details of the papers of land.

P.W.3 Suraji Devi is mother-in-law of the appellant and mother of P.W.2. she has also stated that she heard hulla and then she has identified the accused persons namely Ishwar Mahto, Birju Mahto, Ram Kishun Mahto, two Ghatwar, Dhonu Manjhi, Nuneshwar Manjhi, Moji Mahto, Chandrika Mahto and she has stated that they were armed with knife, dagger, lathi by which they assaulted her. However she has stated that four injuries were on the head, one dagger injury on her chest, four dagger injuries on her waist. However, she has also not stated about the article that the accused persons had taken away.

However, the I.O and the doctor has also not been examined but injury report has been proved by P.W. 5 formally. The objective evidence of the dacoity has not been brought on record. Though the place of occurrence alleged to be the house of the deceased and the manner of occurrence as alleged is injury found on the person of deceased was incised but there is variation in the evidence of prosecution witnesses. P.W.1 has stated that injury caused by bhala. The occurrence is alleged to be at about 12.00 in the night however, no means of identification has been stated by the witnesses and it is alleged that assault was made and thereafter the accused persons immediately decamped with the articles. However, it has not been mentioned that which of the accused persons took the boxes and fled away nor there is any detail of the article, which were taken by the accused persons nor there is any detail of the clothes, jewelleries and papers of land. P.W.1 and P.W. 2 though have stated about assault as well as that the accused persons decamped with the boxes but P.W.3 has not whisper about decamping with the article. She has not supported the case of prosecution that accused persons took away the boxes. The evidence of P.W.2 and P.W. 3 regarding assault is also general and omnibus in nature without any specific that which of the accused persons were armed with which of the weapons and who inflicted the injuries on which of the body and the description of the injury given by P.W.3 shown to be nine dagger injuries whereas injury on the person of the deceased was found to be only one sharp cutting injury and hence the manner of occurrence has also not been well established nor there is any detail of articles which were taken away by the accused persons. There is no evidence that any article has been recovered from the possession of the accused persons or not.

Moreover, it is well settled that the prosecution case itself that the appellant Birju Mahto was the son-in-law and the informant is sarhaj of appellant. The witnesses are mother-in-law and wife of the appellant Birju. The father-in-law is said to have been murdered and the allegation that Birju Mahto along with others came to commit dacoity in the house of informant. However, the prosecution case itself appears to be absurd that son-in-law will go into the house of father-in-law to commit dacoity. However, the prosecutions case itself apparent that even after opening the door, the accused persons did not proceed to loot the article rather they first assaulted the father-in-law and thereafter while decamping, they alleged to have taken away the boxes. However, the prosecution story itself appears to be absurd. Further the manner of occurrence and assault also stands contradicted. The weapon used in the occurrence also stands contradicted. P.W.1 who has stated that the accused persons assaulted father in law by bhala, P.W.2 and P.W.3 have deposed that the accused persons were armed with bhala, knife and farsha and their evidence are not specific to inspire confidence to record the conviction. The allegation of theft also appears to be improbable. Their evidence also suffers from credibility as their evidence finds lacking as which of the accused persons lifted the box has also not been mentioned nor any detail of the article in the boxes nor the details of clothes and jewelleries have been mentioned. The weapon used by the accused persons in the alleged occurrence is also contradictory in the evidence of witnesses. The occurrence took place due to quarrel between the husband and wife.

Taking into consideration that I.O of this case has not been examined and the objective evidence regarding the occurrence is missing. There is variance in the statement of witnesses regarding use of weapon by the accused persons and without any specific allegation that who assaulted whom or on which part, the evidence of witnesses does not inspire confidence to record the conviction.

Hence, I find and hold that the prosecution has not been able to prove the charges against the appellant beyond all reasonable doubts and the judgment of conviction dated 19.01.2011 and order of sentence dated 24.01.2011 passed in Sessions Trial No. 417 of 1992 arising out of Chandan P.S. Case No. 57 of 1990, corresponding to G.R. No. 1135 of 1990 by Shri Abhimanyu Lal Srivastava, learned Additional Sessions Judge, F.T.C. 3rd Banka are hereby set aside and the appeal is allowed. Appellant, namely, Birju Manjhi of Cr. Appeal (SJ) No. 274 of 2011 is in custody, be released forthwith, if not wanted in any other case.