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Judgment
Per, R.Mukhopadhyay, J.
Heard Mr. Sheo Kumar Singh, learned counsel for the appellants and learned A.P.P.
This appeal is directed against the judgment of conviction dated 14.07.2023 and the order of sentence dated 21.07.2023, passed by Shri Abhimanyu Kumar, learned Additional Sessions Judge-V, Palamau at Daltonganj in connection with ST No. 268/2011, whereby and whereunder, the appellants have been convicted for the offences punishable under sections 302/34 and 201/34 of the Indian Penal Code and have been sentenced to undergo RI for life along with a fine of Rs.25,000/- for the offence under section 302/34 of the Indian Penal Code and in default in payment of fine to further undergo RI for one year. The appellants have also been sentenced to RI for three years along with a fine of Rs.5000/- for the offence under section 201/34 of the Indian Penal Code and in default in payment of fine to further undergo SI for six months. Both the sentences were directed to run concurrently.
The prosecution case arises out of the fardbeyan of Kamal Bhuiyan recorded on 15.11.1999 in which it has been stated that on 11.11.1999 the father of the informant Laxman Bhuiyan was taking meal in his house and his mother Phulkumari Devi and sisters Rajkumari and Sabita were busy in household chores when the uncles of the informant namely Kalua Bhuiyan and Rama Bhuiyan having lathi and tangi in their possession started assaulting his father on the allegation of practicing witchcraft which resulted in the father of the informant becoming unconscious. It has been alleged that one Hari Bhuiyan, brother-in-law of Rama Bhuiyan was exhorting the assailants to commit the murder of the father of the informant. On seeing the father of the informant dead the accused persons had taken away the dead body after giving a threat to the family members of the informant not to disclose about the incident to anyone. The informant on receiving the information about the incident from his mother rushed to the place of occurrence where he had seen the accused persons taking away the dead body of his father. The informant had later on come to know that the accused persons had set the dead body on fire.
Based on the aforesaid allegations, Chhattarpur P.S.Case No. 125 of 1999 was instituted for the offences under sections 302/201/34 of the Indian Penal Code. On completion of investigation charge-sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as ST No. 268/2011. Charge was framed against the accused under sections 302/34 and 201/34 of the Indian Penal Code which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.
The prosecution has examined as many as seven witnesses in support of its case.
PW-1 Kamal Bhuiyan is the informant who has stated that he had gone to plough the field when Rama Bhuiyan had come to his house and committed the murder of his father by a Tangi. Apart from Rama Bhuiyan, Lacchu Bhuiyan, Hari Bhuiyan and Kallu Bhuiyan were also present. After the incident his mother had come to the field and disclosed about the murder. When he had reached the house he had found his father dead. Due to the fear of the accused persons he and the others had taken the dead body to Balgirwa hillock where the dead body was buried. The police had come on Saturday and had recorded his fardbeyan.
In cross-examination he has deposed when his mother had disclosed about the incident to him Shambhu was also present. There is no land dispute with his uncle.
PW-2 Phulkumari Devi has stated that the incident had taken place 12-13 years back and she was in the house. Her husband was having his lunch. Her two daughters Sabita Devi and Rajkumari were also present. At that point of time Rama came followed by Kallu Bhuiyan with a Danda. Rama had a Tangi and on the allegation that her husband practices witchcraft he had assaulted him on his neck and head. After some time, Lalu and Hari came and all four took away her husband for cremation and burnt the dead body.
In cross-examination she has deposed that Lalu, Rama and Kallu are her brothers-in-law in relation. Her husband was eating inside the house and after giving him food she had come outside. When she came inside she found her husband dead. On raising an alarm, several persons had assembled. Before the villagers would arrive, the accused persons had already taken away her husband. The police was informed about the incident after two days. She has deposed that when the accused persons were taking away the dead body of her husband she had not followed them. Nobody from her family had gone. There are 8-9 houses in the vicinity of her house but nobody had seen her husband being taken away by the accused persons.
PW-3 Shambhu Bhuiyan has stated that he was ploughing the field when Rama Bhuiyan, Kallu Bhuiyan, Lacchu Bhuiyan and Hari Bhuiyan had come to his house. Rama Bhuiyan had a Tangi with him while Kallu Bhuiyan had a Lathi. Rama Bhuiyan had made indiscriminate assault upon his father with the Tangi which resulted in his death after which his dead body was taken to the jungle and burnt. The incident has been witnessed by his mother, sister-in-law and others. The reason for the occurrence is that the son of Hari Bhuiyan had died on account of an ailment and it was suspected that the death was caused due to the witchcraft practiced by his father.
In cross-examination he has deposed that when his mother raised a cry of alarm he had rushed to his house. Several other persons had also reached though he does not remember the name of those persons. His mother had gone to inform the police after 1-2 days of the occurrence. When the accused persons were taking away the dead body of his father nobody had stopped them. He had not disclosed to the police about the reason for the occurrence. There was no previous dispute with the accused persons.
PW-4 Dhano Devi has stated that she was in the house and when her father-in-law was having his meals Rama Bhuiyan had come and assaulted him with a Tangi. The accused persons had taken away the dead body of her father-in-law to Balgirwa forest. She does not know as to what was done with the dead body. When her father-in-law was being assaulted she and the other inmates did not try to save him. Her father-in-law was murdered on the suspicion that he practices witchcraft.
In cross-examination she has deposed that on the date of occurrence nobody had gone to inform the choukidar or the police station. When the assault was being committed nobody from the village was present. There was no land dispute with Rama Bhuiyan and Kallu Bhuiyan. Her husband and brother-in-law had also accompanied the accused persons and had cremated him.
PW-5 Rajkumari Devi has stated that she was in the house involved in some domestic chores along with her sister and her father was having his meals when Rama Bhuiyan with a Tangi and Kalua Bhuiyan with a Lathi had come and Rama Bhuiyan had assaulted her father on the head with the Tangi alleging that he practices black magic. Due to the assault her father had become unconscious and thereafter he was put inside a gunny bag and they had taken him away. They had searched for the dead body for two days but it could not be located.
In cross-examination she has deposed that a substantial quantity of blood had spilled on the place where her father was assaulted. The clothes which were blood stained were washed clean. There was a dispute with the accused persons for about one year prior to the date of the incident.
PW-6 Sabita Kumari has stated that she was at her parents’ place and at 10:00 a.m. her mother and sister were feeding her father when Rama came with a Tangi and Kalua had come with a Danda. Both had assaulted her father. When the accused persons were assaulting her father she and the others were crying. The accused persons had taken away the dead body of her father towards the hillock.
In cross-examination she has deposed that when she and the other inmates of the house had raised a cry of alarm nobody had come as all were busy working in the field.
PW-7 Jirmaniya Devi did not support the case of the prosecution and was declared hostile by the prosecution.
The statements of the accused were recorded under section 313 Cr.P.C. in which they have denied their complicity in the murder.
It has been submitted by Mr. Sheo Kumar Singh, learned counsel for the appellants that no witness had seen the incident of murder purportedly committed by the appellants. The FIR has been instituted after a delay of four days and the prosecution has failed to explain the delay. Mr. Singh has further submitted that the evidence of witnesses are at variance to each other and even the conduct of the witnesses leaves much to be desired. Most of the witnesses are related to each other and are interested witnesses and the learned trial Court should have been more circumspect in analyzing their evidence. It has been submitted that the Investigating Officer has not been examined and he could not be confronted with the evidence of the witnesses which has caused prejudice to the defence.
Learned A.P.P. has submitted that PW-2, PW-5 and PW-6 are the witnesses of substance and they have described the manner of occurrence and the taking away of the dead body of the deceased by the appellants and other witnesses. Since the informant was threatened by the appellants the delay in instituting the First Information Report had occurred.
We have heard the learned counsel for the respective sides and have also perused the trial Court records.
The incident had occurred on 11.11.1919 and the FIR was instituted on 15.11.1919. The father of the informant was assaulted by the appellants with Tangi and Lathi which resulted in his death and thereafter his body was taken away by them and other accused persons. Incidentally the body of the deceased was never found. PW-1 and PW-3 are the sons of the deceased and when they had arrived at the place of occurrence on being told about the incident by their mother (PW-2) the assault had already taken place. PW-2 has in her cross-examination deposed that she had gone outside after serving food to the deceased and when she came back she had seen him dead. However, PW-4, PW-5 and PW-6 claimed themselves to have seen the assault. These witnesses are the daughters and daughter-in-law of the deceased. It has come in course of evidence that there were several houses in the vicinity but not a single person had come out on hearing the cry of alarm of the inmates of the house. It is to be noted herein that the incident had taken place at 10:00 a.m. Despite PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6 claiming themselves to be the eye-witnesses of some part of the occurrence but their conduct reveals a great deal of suspicion. PW-2 has stated that nobody from her family had followed the accused persons who were taking away the dead body and this evidence appears to contradict what has been stated by PW-1 and PW-4. PW-1 has stated that he had accompanied the accused to Balgirwa hillock and the dead body was cremated. PW-4 is the wife of PW-1 and she has stated that PW-1 and her brother-in-law had gone with the accused and cremated the dead body. If PW-1 and his brother had taken away the dead body of the deceased and got him cremated they could have pointed out the place where the dead body was buried so that the same could have been exhumed. Despite there being several houses in the vicinity and the entire sequence of events having occurred during daytime it would have been inconceivable that nobody protested about such act or informed the police immediately. Neither a single independent witness has been examined by the prosecution nor the presence of any named witness has been noted by the witnesses. The entire episode appears to be fraught with doubts. Even the Investigating Officer has not been examined. In the context of the same, Mr. Sheo Kumar Singh, learned counsel for the appellants has relied upon the case of “Munna Lal versus State of Uttar Pradesh” reported in 2023 18 SCC 661 wherein it has been held as follows:
“39.Secondly, though PW 4 is said to have reached the place of occurrence at 1.30 p.m. on 5-9-1985 and recovered a bullet in the blood oozing out from the injury at the hip of the dead body, no effort worthy of consideration appears to have been made to seize the weapons by which the murderous attack was launched. It is true that mere failure/neglect to effect seizure of the weapon(s) cannot be the sole reason for discarding the prosecution case but the same assumes importance on the face of the oral testimony of the so-called eyewitnesses i.e. PW 2 and PW 3, not being found by this Court to be wholly reliable. The missing links could have been provided by the investigating officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the investigating officer could not depose as a witness, as told by PW 4, is that he had been sent for training. It was not shown that the investigating officer under no circumstances could have left the course for recording of his deposition in the trial court. It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the investigating officer.
40.In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW 2 and PW 3 not being wholly reliable, this Court holds the present case as one where examination of the investigating officer was vital since he could have adduced the expected evidence. His non-examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case.”
In the present case also, the evidence of the witnesses are wholly unreliable thereby necessitating the examination of the Investigating Officer but failure to do so has caused a great deal of prejudice to the defence. The wide gaps in the prosecution case and the inherent contradictions in the evidence of the witnesses have not been properly appreciated by the learned trial Court which would thus invite an interference by us and as a consequence to the findings recorded above, the impugned judgment of conviction dated 14.07.2023 and the order of sentence dated 21.07.2023, passed by Shri Abhimanyu Kumar, learned Additional Sessions Judge-V, Palamau at Daltonganj in connection with ST No. 268/2011 is hereby set aside.
This appeal is allowed.
Since the appellant no.1 is in custody, he is directed to be released immediately and forthwith, if not wanted in any other case. So far as the appellant no.2 is concerned, since he is on bail he is discharged from the liability of his bail bonds.
Pending IA, if any, stands closed.