Mohan Bhuiya @APPELLANT@Hash State of Jharkhand

1.Heard learned counsel for the appellant and the learned counsel for the State.

The sole appellant is aggrieved by the impugned Judgement of conviction and Order of sentence dated 24.10.2007, passed by the learned Additional

Sessions Judge, F.T.C.-VI, Dhanbad, in S.T No. 334 of 1986, whereby, the appellant has been found guilty and convicted for the offence under

Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life with

fine of Rs.1000/- for the said offence. It may be stated that the wife of the appellant, namely, Chamelwa Devi, had also faced the trial along with the

appellant, but she has been acquitted by the Trial Court below.

The prosecution case was instituted on the basis of the fardbeyan of the informant Durga Das, who is a close relative of the deceased, Sukar Das.

The dead body of the deceased was brought to the Dhansar Police Station, by the informant along with other persons, who were also injured in the

occurrence, and the fardbeyan was given at the Police Station itself on 06.03.1985 at about 22:30 hours, wherein it is stated that on the same day at

about 9:30 P.M in the night, his father Hulas Das was invited by the accused Pagla Bhuiya, the maternal uncle of the accused Mohan Bhuiya, for

taking meal. The mother and the sister of the informant also followed his father, and after some time, the informant brought them back to his house.

His father and mother had consumed liquor also at the house of the accused. Thereafter Sukar Das and his wife, the mousa and mousi, of the

informant, also visited their house, and at about 9:45 P.M in the night, the accused Mohan Bhuiya, Pagla Bhuiya, Chamelwa Devi and other three

unknown persons came armed with bhujali, lathi and stones etc., and they were putting a gumti (small wooden shop), which was located in front of the

house of the informant, on fire, which was objected to by the father of the informant, whereupon there was quarrel between them. Sukar Das, the

mousa of the informant intervened in the quarrel, whereupon, Mohan Bhuiya assaulted Sukar Das by bhujali, causing injuries in his body from lip up to

his chest, due to which, he fell down and died.

Tanka Das, the brother of the informant tried to snatch away the bhujali from Mohan Bhuiya, in which, he was injured in his hand. Thereafter, the

informant snatched the bhujali from the hand of Mohan Bhuiya. Thereafter Mohan Bhuiya assaulted the informant by stone on his head, causing

injuries, due to which, the informant fell down. The mousi of the informant was also assaulted and injured by Mohan Bhuiya. Chamelwa Devi, the wife

of Mohan Bhuiya also made assaults by stone. The informant's brother Tanka Das was also assaulted by Pagla Bhuiya, Chamelwa Devi and other

persons by lathi and stones, causing bleeding injuries on his head, and the sister of the informant, Laliya Devi was also assaulted and injured by the

accused persons. It is stated in the fardbeyan that the said gumti was belonging to one Baro Bhuiya, with whom the accused persons had enmity and

since the informant’s side objected to put the gumti on fire, the accused persons had assaulted Sukar Das to death and injured the other persons.

On the basis of the fardbeyan of the informant, Dhanbad P.S Case No.102 of 1985, corresponding to G.R No.560 of 1985, was instituted for the

offences under Sections 147, 148, 149 and 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the

charge-sheet in the case against the three named accused persons. The impugned Judgment shows that the accused Pagla Bhuiya was absconding,

and the trial was faced by the appellant Mohan Bhuiya and his wife Chamelwa Devi.

After commitment of the case to the Court of Session, charge was framed against these accused persons for the offences under Sections 302 /

149, 307/149 and 148 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial.

In course of trial, nine witnesses were examined by the prosecution. The I.O., and the Doctor who had conducted the post-mortem examination on

the dead body of the deceased, were not examined by the prosecution and accordingly, the fardbeyan has been proved by a formal witness, P.W.-9

Kansari Mandal as Exhibit-2, and the post-mortem report has been proved by P.W.-7 Kamlesh Mishra, an Assistant in P.M.C.H, Dhanbad, as

Exhibit-1, and P.W.-8 Dr. Shailendra Kumar, had also identified the handwriting and signature of the Doctor, conducting the post-mortem examination,

but he has not proved the findings of the Doctor conducting the post-mortem examination, in his evidence.

Out of the material witnesses examined, P.W.-3 Kisun Das has turned hostile and has not supported the prosecution case. P.W.-1 Kalawati @

Kalwatia Devi, is the wife of the deceased, but she did not appear for her cross-examination, and as such, her evidence could not be taken into

consideration. P.W.-2 Neto Das is only a hearsay witness, who soon after the occurrence had reached the place of occurrence and seen the

deceased in injured condition. He has stated that he had not seen the occurrence, but he heard that the deceased was assaulted by Mohan Bhuiya.

P.W.-6 Durga Das is the informant of the case, who has supported the prosecution case as eyewitness to the occurrence. Sans unnecessary

details, he has stated that when his father, mother and sister came back from the house of the accused, the accused persons, namely, Pagla Bhuiya,

Mohan Bhuiya, Chamelwa Devi and three unknown persons came to his house and they tried to put the gumti to fire, which was objected by his father

Hulas Das and thereafter the quarrel took place. The deceased, Sukar Das tried to intervene, when Mohan Bhuiya assaulted him by bhujali, injuring

him from lip up to his chest, due to which, Sukar Das fell down. When Tanka Das tried to snatch the bhujali, he was also injured in his hand and this

witness also tried to snatch the bhujali from the accused. He has stated that this witness was also assaulted and injured by Mohan Bhuiya by stone.

The injured, Sukar Das was being taken to Police Station, but he died in the way. He has stated that his statement was recorded by the police

whereupon he had put his thumb impression.

He went along with the injureds to Sadar Hospital, Dhanbad, where all of them were treated and post-mortem of Sukar Das was conducted. He has

identified the accused, Mohan Bhuiya in the Court. This witness was put to extensive cross examination, in which he has stated that his father, Hulas

Das and mother Jitni Devi are dead. There was no enmity between them and the accused, rather the accused had the enmity with the owner of the

gumti. He has stated that at the time of occurrence, his mother, father, mousi and mousa had also consumed liquor. The police had not visited the

place where Sukar Das had fallen down. He has also stated that bhujali was snatched away from the accused persons and it was produced in the

Police Station. He has denied the suggestion that his father was not in visiting terms with the accused and he has also denied the suggestion that his

father, mother and sister had not visited the house of the accused. He has also denied the suggestion that the deceased had been killed in the house of

this witness and in order to save themselves, they took the dead body to the Police Station in order to falsely implicate the accused.

P.W.-4 Laliya Devi is the sister of the informant and P.W.-5 Tanka Das is the brother of the informant and both of them have also supported the

prosecution case in more or less the same manner, as stated by the informant. Both of them have also denied the suggestion that the deceased was

killed in their house and the accused persons had been falsely implicated by them.

The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No

evidence was adduced by the defence. On the basis of the evidence on record, the appellant Mohan Bhuiya has been convicted and sentenced as

aforesaid, whereas the accused Chamelwa Devi, the wife of the appellant was acquitted of the charges by the Trial Court below.

Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below,

cannot be sustained in the eyes of law, inasmuch as, the I.O., and the Doctor conducting the post-mortem examination on the dead body of the

deceased, have not been examined in the case, and the fardbeyan and post-mortem report have been proved only by the formal witnesses. It is

submitted by the learned counsel that even the place of occurrence has not been proved in the case due to the non-examination of the I.O., and there

is no evidence on record to show that any bhujali was produced in the Police Station. Learned counsel also submitted that the prosecution case is

supported only by the informant, his brother and sister, who are highly interested witnesses, and it is not supported by any independent witness.

Learned counsel accordingly, submitted that in the facts of the case, even though the informant, his brother and sister have supported the prosecution

case, but it is a fit case in which the appellant ought to have been given the benefits of doubt, as on the basis of the same evidence, the co-accused,

i.e., the wife of the appellant has been acquitted by the Trial Court below.

Learned counsel for the State has opposed the prayer and has submitted that the prosecution case is fully supported by P.W.-4 Laliya Devi, P.W.-

5 Tanka Das and P.W.-6 Durga Das, the informant, giving the vivid details of the occurrence, in which, there is direct and specific allegation against

the appellant to have assaulted the deceased by bhujali.

Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is supported only by the

interested witnesses, i.e., P.W.-4 Laliya Devi, P.W.-5 Tanka Das and P.W.-6 Durga Das, who are highly interested witnesses in the case. Though

they have supported the prosecution case but the fact remains that the suggestion was given to them that the occurrence had taken place in their

house and they had taken the dead body to the Police Station and falsely implicated the accused. We find from the record that the I.O., and the

Doctor conducting the post-mortem examination have not been examined in the case. Though according to the FIR, apart from the deceased, the

informant, Durga Das, his brother, Tanka Das, his sister Laliya Devi, and Kalawati Devi, the wife of the deceased, were also injured in the

occurrence, and the informant has stated that all the injureds were treated at Sadar Hospital, Dhanbad, but the injuries of none of these injureds have

been proved by the prosecution, nor the Doctor examining these injureds have been examined by the prosecution. In fact, the informant in his evidence

has not stated about the injuries upon the other persons, except the injuries upon the deceased, his brother and himself.

Even though in the fardbeyan, it is stated that the deceased Sukar Das died at the spot, but in their evidence, P.W.-5 Tanka Das and P.W.-6 Durga

Das have stated that the deceased died in the way, while he was being taken to the Police Station, and P.W.-4 Laliya Devi has stated that the

deceased died at the Police Station. Though the informant has stated that the bhujali was snatched from the accused and was handed to the police, but

due to non-examination of the I.O., there is no evidence on record to show that any bhujali was ever produced in the Police Station, and if so

produced, whether the same was blood stained or not. Since the I.O., has not been examined in the case, we have also looked into the case diary in

the interest of justice, and we find that though the occurrence had taken place in the night hours of 06.03.1985, the accused was arrested from his

house on 07.03.1985 itself, and the I.O has mentioned in the case diary that there were several injuries on the body of the accused Mohan Bhuiya,

including one bleeding injury on the head of the accused. The prosecution witnesses, supporting the prosecution case, have completely concealed this

injury upon the accused, which shows that these witnesses have not given the true details of the occurrence in their evidence.

We are also of the considered view that due to non-examination of the I.O., and the Doctor conducting the post-mortem examination, the defence

has been vitally prejudiced, and even though the informant, his brother and sister have supported the prosecution case as eyewitnesses to the

occurrence, it was a fit case in which the appellant ought to have been given the benefits of doubt. As such, the impugned Judgment of conviction and

Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law.

For the foregoing reasons, the impugned Judgement of conviction and Order of sentence dated 24.10.2007, passed by the learned Additional

Sessions Judge, F.T.C.-VI, Dhanbad, in S.T No. 334 of 1986, so far as convicting and sentencing the appellant Mohan Bhuiya for the offence under

Sections 302 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant, Mohan Bhuiya, is given the benefits of doubt and he is

acquitted of the charge. The appellant is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not

required in any other case.

This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this

Judgment.