Patna High Court
Faguni Manjhi @ Fagunia & Anr vs State Of Bihar on 17 January, 2014
Author: V.N.Sinha
Bench: V.N. Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.355 of 2007
(Appeal against the judgment judgment/order, dated
30/31.01.2006, passed by Additional Sessions Judge, F.T.C., 4th, Gaya, in Sessions Trial No. 15 of 2004/103 of 2004) ===========================================================
1. Faguni Manjhi @ Fagunia, Son of Dhanu Manjhi, resident of Village- Gere Bhui Tola, P.S.- Muffasil, District- Gaya.
2. Ramanand Manjhi, son of Late Hari Manjhi, resident of Village- Gere Bhui Tola, P.S.- Muffasil, District- Gaya .... .... Appellants Versus The State of Bihar .... .... Respondent =========================================================== Appearance :
For the Appellants : Ms. Uma Kumari, Amicus Curiae For the Respondent : Mr. Ashwani Kumar Sinha, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI and HONOURABLE MR. JUSTICE V.N. SINHA C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date: 17 -01-2014 V.N.Sinha,J. This appeal is directed against the judgment/order, dated 30/31.01.2006, passed by Additional Sessions Judge, F.T.C., 4th, Gaya, in Sessions Trial No. 15 of 2004/103 of 2004, whereby the two appellants have been convicted for the offence under Sections 302/149, 307/149, 147, 452 and 427/149 of the Penal Code. For conviction under Section 302/149, 307/149 I.P.C., they have been directed to undergo R.I. for life, R.I. for ten years respectively with further direction to pay a fine of Rs. 5,000/- each under both the counts. For conviction under Sections 147, 452, 427/149 of the Penal Code, the two appellants have been directed to undergo R.I. for 1,3,1 year each. The sentences, however, have Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 2 been directed to run concurrently with further direction that the period already undergone by them in custody during investigation, trial of the case shall be set off against the period of sentence. In default of payment of fine of Rs. 10,000/-, the two appellants have further been directed to undergo sentence of R.I. for one year.
2. Prosecution case as set out in the fardbeyan of Lalti Devi, wife of Binod Rawani, of Villagte Gere, Bhuin Toli, Dhankutti, P.S. Mufassil, District- Gaya, recorded by S.I. B.K. Pandey, Officer-in-Charge, Mufassil P.S., on 21.05.2003, at 02 hours, near the house of the informant, in Bhuin Toli, Dhankutti is that on the previous day i.e. 20.05.2003, around 12 noon, there was altercation between the informant and the wife of Goga Manjhi, resident of the same village. Goga Manjhi assaulted the informant, which prompted the husband of the informant Binod Rawani to ask Goga Manjhi as to why did he assault his wife (informant) and to further assault him. The villagers did not intervene but after some time, peace was restored. In the same night, informant along with her husband Binod Rawani, brother-in-law Awadhesh Rawani, Bijay Rawani, Binod Rawani, Legha Manjhi, Ashok Manjhi @ Ashok Rawani, Sambal Singh Manjhi was at home. Besides her husband others present in the house of the informant are resident of Pahartalli. In the night around 08.00 P.M. when the sister-in-law of the informant was also present and working in the house, persons named above, were taking toddy, informant came out of her house and saw 15-20 men namely, Goga Manjhi, Nanhku Manjhi, Ramanand Manjhi, Siva Nand Manjhi, Suresh Manjhi, Bhutalo Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 3 Manjhi, Sheo Bhajan Manjhi, Naresh Manjhi, Prakash Manjhi, Nand Kishore Manjhi, Pappu Manjhi, Sanjay Manjhi, Mandeep Manjhi, Faguniya Manjhi, Gunjan Manjhi and Umesh Manjhi, all co-villagers variously armed with lathi, rod, tangi etc., having formed unlawful assembly surrounded, entered her house and began to assault those present in the house. Kiran Devi and Awadhesh Rawani, however, came out of the house and ran away.
All the accused-persons assaulted her husband Binod Rawani, Legha Manjhi, Ashok Manjhi @ Ashok Rawani, Sambal Singh Manjhi, brought them out of the house and further assaulted them even outside the house by climbing on their chest. The accused persons also assaulted the victims with lathi, rod, tangi and stone. The four having suffered injury fell down. Accused persons also broke, damaged the roof, house-hold articles, earthen grainery, and utensils and then went away. After departure of the accused persons, informant went inside the house, saw Bijay Rawani lying seriously injured and the house-hold articles scattered. Informant also found Rs. 500/- (five hundred) kept in her box and Rs. 3,000/- (three thousand) kept in the earthen pot missing, which was perhaps taken away by the accused persons. It is further stated in the fardbeyan that outside her house informant found her husband Binod Rawani, Legha Manjhi, Ashok, Sambal Singh Manjhi dead. Some-how Awadhesh went to Pahartalli and called her father-in- law. Afterwards police also came and the informant recorded her fardbeyan. Informant further alleged in the fardbeyan that the occurrence continued between 08.00-12.00 P.M. Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 4
3. B.K. Pandey, having scribed the fardbeyan, forwarded the fardbeyan to Mufassil P.S., on 21.05.2003, for registration of the case with further endorsement that he has already taken up the investigation. In the light of the fardbeyan, Gaya (Mufassil) P.S. Case No. 58/03, dated 21.05.2003 was registered for the offence under Sections 302, 307 and other allied Sections of the Penal Code, against 16 co-villagers of the informant and others unknown.
4. During investigation, Investigating Officer prepared inquest report of the four deceased, recorded the further statement of informant Lalti Devi and the injured as also the statement of other witnesses, collected the post mortem report of the four deceased and the injury report of the injured, submitted charge- sheet, against the two appellants, keeping the investigation pending, against the absconding accused.
5. In the light of the charge-sheet, cognizance was taken and the case was committed to the Court of Sessions. In support of the charges, prosecution examined nine witnesses. P.W. 1 Dukhan Singh and P.W. 8 Hippo Singh are the witnesses of the two seizure-lists by which blood smeared earth, stone, lathi and straw was seized. The seizure-list are Exhibits 1, 1/A, 1/B and 1/C. P.W. 6 is Dr. Arvind Prasad, who conducted post mortem of the four deceased and proved all the post mortem reports prepared by him, as Exhibit-2 to 2/3. P.W. 7 Dr. J.P. Narayan has proved the injury- report of Bijay Rawani, Ext.- 3. P.W. 9 Hareram Singh is formal witness, who proved the writings and signature on the fardbeyan Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 5 and seizure-list, which has been marked as Exhibits. 4, 5, 6 and 7 respectively. P.W. 9 has proved the handwriting of the Investigating Officer on the case diary, Exhibit-7. P.W. 4 Lalti Devi is the informant of the case. P.W. 5 Kiran Devi is the sister-in-law of the informant, who was present in the house at the time of occurrence. P.W. 3 Bijay Rawani is the injured. P.W. 2 Awadhesh Kumar was present in the house at the time of occurrence but is said to have run away.
6. The appellants pleaded not guilty, in their statement under Section 313 Cr.P.C. The trial Court, however, having considered the evidence of the nine prosecution witnesses, convicted the two appellants of the charges levelled against them.
7. Learned Amicus Curiae, appearing for the appellants, has assailed the impugned judgment, on the ground that admittedly the occurrence has taken place between 08.00- 08.30 in the night and there being no means of identification, it would have been impossible for the informant and the witnesses to have identified the miscreants, who forcibly entered the house of the informant and assaulted the four deceased and the injured. In this connection, she referred to the evidence of P.W.2, paragraph 3, in which P.W. 2 has categorically admitted that the night was dark. She further submitted that from the prosecution evidence itself it is evident that the two appellants were not amongst the assailants. In this connection, she also pointed out that the occurrence is the fall- out of the desire of P.W. 2 to marry the daughter of Goga Manjhi, which is evident from the evidence of P.W. 2 and the informant P.W. Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 6 4 Lalti Devi. These appellants, having no connection with Goga Manjhi, hardly had any occasion or intention to take part in the assault. Their presence, at the place of occurrence, as disclosed in the First Information Report, has not been corroborated by any of the prosecution witnesses while deposing in Court. From the evidence of informant Lalti Devi (P.W. 4), it does not appear that the two appellants were either the assailants or shared the common object of the unlawful assembly of which they are said to be the member. In the light of the aforesaid submission, it was submitted that the judgment of conviction and order of sentence is fit to be set aside.
8. Counsel for the State, however, supported the impugned judgment of conviction, order of sentence and submitted that from the fardbeyan, it is quite evident that the two appellants were amongst the members of the unlawful assembly, which committed the offence and the two appellants cannot disown their involvement in the occurrence as a member of the unlawful assembly. They may not have taken part in actual assault but, they did share common object and had been rightly convicted for the offence under Sections 302/149, 307/149 and other allied Sections of the Penal Code.
9. In order to consider the correctness or otherwise of the aforesaid rival submission, of the counsel for the appellants and the State, it is necessary to peruse the evidence on record.
10. P.W. 1 Dukhan Singh is the witness of seizure of incriminating articles at the place of occurrence. He has admitted Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 7 his signature on the two seizure-lists but stated in paragraph 2 of his evidence that nothing was seized in his presence, as on the date of occurrence, he was not in the village and after he returned from outside, Officer-in-Charge asked him to put his signature over the two seizure-lists.
11. P.W. 2 is Awadhesh Kumar. He has stated in his evidence that informant Lalti Devi (P.W. 4) is his sister-in-law and that he wanted to marry the daughter of Goga Manjhi but Goga Manjhi was not willing for the marriage. In paragraph 2 P.W. 2 has further stated that occurrence had taken place one and a half year earlier, in the night around 08.30 in which Binod Rawani, Ashok Rawani, Legha Manjhi, Sambal Manjhi were killed and Bijay Manjhi was injured by 15-16 accused-persons. In the same paragraph P.W. 2 further stated that his sister-in-law informed him the name of the assailants but he does not remember their name. P.W. 2 also did not identify the accused persons present in Court. In paragraph 3 P.W. 2 further stated that at the time of assault, he ran away from the place of occurrence and met his sister-in-law next morning. He further clarified in the same paragraph that the night was dark and he did not identify any of the accused persons.
12. P.W. 3 is Bijay Rawani, who has stated in paragraph 1 of his evidence that he also suffered assault on his person, 1 ½ year earlier, around 07.45, in the night, in his village. In the occurrence, Ashok Kumar, Tuntun Kumar, Sambal Manjhi, Legha Manjhi were killed. He has further clarified that Ashok Kumar is also known as Binod Rawani. 16-17 men assaulted the Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 8 witness and others with stone and rod when he came to save others. He also stated in the same paragraph that he remained in hospital for six days. P.W. 3 further stated that he is not even aware about the village of the accused persons and unable to recognize the two accused present in dock. In cross-examination, the witness further clarified that the accused, present in dock, did not participate in the assault.
13. P.W. 4 Lalti Devi is the informant. She has stated in paragraph 1 of her deposition that her parental home is in Gerey Bhuin Tola in Dhankatti village. The occurrence has taken place one year earlier in the month of Jeth, at about 08.30 P.M., when she was inside her parental home. She further stated that scuffle took place on account of the daughter of Goga Manjhi. Amongst the 16 accused persons, who came to the place of occurrence, accused Faguni Manjhi and Ramanand Manjhi were apprehended. In the same paragraph, informant has given the name of all the 16 accused persons, who were present at the place of occurrence. She further stated that accused persons were armed with iron rod, stone and lathi. She also stated that the accused persons assaulted Binod Rawani, Ashok Rawani, Legha Manjhi, Sambal Manjhi and Bijay Manjhi with lathi, rod and stone. Bijay was saved because of treatment given to him. Other four, however, succumbed to their injuries. She also stated that after assault, the victims were thrown outside on the rubbish. The assailants also took away rice, utensils worth Rs. 3,000/- (three thousand) and damaged the tiled roof. In paragraph 2 of her evidence, she further stated that policemen from Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 9 Mufassil Police Station came and collected the four dead bodies from the rubbish and recorded her statement. She further stated in the same paragraph that the two appellants are present in dock. In paragraph 3 P.W. 4 stated that she was at her parental house from the month of Falgun. In the same paragraph she further clarified that Ramanand and Faguni Manjhi are resident of her village and known to her. She further clarified in the same paragraph that Faguni and Ramanand were not amongst the assailants. In paragraph 4 she further stated that there are 10-15 houses in her village and that after the occurrence there was commotion in the village as also the fact that there was profuse bleeding at the place of occurrence. In paragraph 5, she further stated that she had come to the Police Station along with her family members. Villagers, however, did not accompany her to the Police Station. She further stated in the same paragraph that she instituted the present case out of her own volition. In paragraph 6 P.W. 4 has clarified that she was earlier married in Village- Chirali, but she never went to Chirali and then was again married in Bodh Gaya, where she went. In the same paragraph P.W. 4 declined the suggestion that occurrence has not taken place, as has been described by her and that she has instituted the present false case at the instance of her family members.
14. P.W. 5 Kiran Devi is the sister-in-law of the informant. She has stated in her evidence that Ashok Rawani, Binod Rawani, Legha Manjhi and Sabal Manjhi were killed one year earlier. P.W. 5 further stated that Binod Rawani was her brother Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 10 and Lalti Devi is her sister-in-law. P.W. 5 further stated that assault had not taken place in her presence and that at the time of assault she was in her matrimonial home in village Gere and saw the dead body at the Mufassil Police Station.
15. P.W. 6 is Dr. Arvind Prasad, who conducted the post mortem on the dead body of the four deceased, on 21.05.2003, between 10.45 A.M. and 11.45 A.M. and prepared post mortem report, Exhibit-2 to 2/3. In paragraph 6 of his evidence, P.W. 6 stated that the injuries caused on the four deceased are by lathi, iron rod and blunt portion of tangi. P.W. 6 has further stated that the ante mortem injuries found on the person of the four deceased are not possible due to fall. It further appears from the post mortem report that chest, abdomen of the four deceased were heavily pressed causing injury to the interior parts of the body. P.W. 6 also stated in his evidence that those who caused injuries on the person of the four deceased, inflicted those injuries, with intention to cause death.
16. P.W. 7 Dr. J.P. Narayan examined the injured Bijay Rawani on 21.05.2003 at 02.50 A.M. and found as many as five lacerated wound on his person and another swelling with bruise on forehead. Out of the five, three lacerated wounds were on the vital parts of Bijay Rawani. According to P.W. 7 the injuries found on the person of Bijay Rawani were inflicted on the vital parts of his body and may cause death.
17. P.W. 8 Hippo Singh is the witness of seizure-list, who has admitted his signature on the two seizure-lists but stated Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 11 that he did not record any statement before the police. In paragraph 3 P.W. 8 further stated that Officer-in-Charge has taken his signature on blank paper.
18. P.W. 9 Hareram Singh is Advocate's Clerk and has stated that he can recognize the handwriting of Sri B.K. Pandey, the then Officer-in-Charge of Mufassil Police Station, as he has seen him writing and reading. Having seen the fardbeyan P.W. 9 stated that the same has been scribed by B.K. Pandey and is under his signature, which P.W. 9 identified and fardbeyan was marked Exhibit-4. In paragraph 2 P.W. 9 stated that the formal F.I.R. has been drawn under the hand-writing and signature of Kamla Prasad Singh, the then Officer-in-Charge of Mufassil Police Station, whom the witness had seen writing and reading. Formal F.I.R. was marked as Exhibit-5. In paragraphs 3, 4 P.W. 9 has stated that the two seizure-lists and the case diary are under the signature of S.I. B.K. Pandey, which he identified and the two seizure-lists and the case diary were marked as Exhibits- 6, 6/1 and 7 respectively. In paragraph 5 P.W. 9 clarified that the aforesaid Exhibits were not written by Sri B.K. Pandey in his presence.
19. It appears, the assault on the four deceased and one injured on 20.05.2003, between 08-08.30 P.M. was preceded by an altercation between informant (P.W. 4) and wife of Goga Manjhi, at 12 noon, whereafter Goga Manjhi assaulted the informant and thereafter husband of the informant, one of the four deceased, assaulted Goga Manjhi during the day, as brother-in-law of the informant (P.W. 2) wanted to marry daughter of Goga Manjhi, who Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 12 was not consenting for the matrimony of the two. From the evidence of the prosecution witnesses, it does not appear that the two appellants had any connection with Goga Manjhi or that they supported him in his cause not to permit his daughter to get married to P.W. 2 Awadhesh Kumar, the brother-in-law of the informant.
20. Appreciating such fact, during trial, informant, injured and other prosecution witnesses, have candidly admitted that the two appellants did not take part in the assault on the four deceased and one injured. Trial Court, however, convicted the two appellants on the ground that from the evidence of the informant in paragraphs 1 and 3 it appears that the two appellants were members of the unlawful assembly, formed by the 14 co-accused and the appellants were also armed with iron-rod and stone. The conclusion reached by the trial Court appears to be misreading of the evidence of the informant, as in paragraph 1 she has only stated that the two appellants were also members of unlawful assembly of 16 persons which was armed with iron-rod and stone. There is only omnibus allegation that the mob was armed with rod and stone, there is no specific evidence of the informant that the two appellants were armed members of the mob. Aforesaid omnibus assertion about the mob, being armed with iron-rod and stone, is to be considered in the light of the further clarification made by the informant herself in paragraph 3 of her cross-examination, where she has categorically admitted that Faguni and Ramanand were not the assailants.
Patna High Court CR. APP (DB) No.355 of 2007 dt.17-01-2014 13
21. From the evidence of the prosecution witnesses, P.Ws. 2,3,4 and 5, present at the time of occurrence, it is evident that the two appellants, though present at the time of assault, on the four deceased and one injured, but were not armed. In the circumstances, it cannot be authoritatively held that the two appellants shared the common object of those who assaulted the four deceased and one injured.
22. In the result, the appeal succeeds. The impugned judgment of conviction and order of sentence is, accordingly, set aside and the two appellants are directed to be set at liberty forthwith, if not wanted in any other case.
23. Let the Lower Court Records be sent back to the learned Court below with a copy of this judgment and order.
(V.N.Sinha,J.) I agree I.A.Ansari,J.
(I.A.Ansari,J.) P.K.P./N.A.F.R.