Jharkhand High Court
The State Of Bihar vs Chandra Bhanu Som And Ors. on 21 February, 2003
Equivalent citations: 2003CRILJ2793, 2003 CRI. L. J. 2793, 2003 AIR - JHAR. H. C. R. 769, (2003) 2 EASTCRIC 88, (2003) 2 CURCRIR 274, (2003) 2 JLJR 225
Author: Lakshman Uraon
Bench: Lakshman Uraon
ORDER Lakshman Uraon, J.
1. The petitioners in all the three Criminal Revision applications, referred to above, are aggrieved and dissatisfied with the order dated 24th January, 2000, passed by the learned 3rd Additional Sessions Judge, Deoghar, in Sessions Trial No. 66 of 1998, whereby and whereunder, he has rejected the petition, filed by the prosecution to summon Chandra Bhanu Som (Opp. Party No. 1 in Cr. Rev. Nos. 388/2000 and 520/ 2001 and Opp. Party No. 2 in Cr. Rev. No. 369/2001) under Section 319 of the Code of Criminal Procedure (in short 'the Code') to face trial along with other co-accused/ opposite parties. Cr. Rev. No. 388 of 2000 has been preferred by the State of Bihar (Now Jharkhand) and Cr. Rev. No. 369 of 2001 has been preferred by accused Munna Singh whereas Cr. Rev. No. 520 of 2001 has been preferred by the State of Jharkhand through the Deputy Commissioner, Deoghar.
2. The case of the prosecution, which is based on the Fard-beyan of Sanjay Malviya, registered as Deoghar P. S. Case No. 238 of 1997 on 9th October. 1997 (G.R. No. 620 of 1997) for the offence under Section 302/34 of the Indian Penal Code, is that on 9-10-1997 Durga Puja festival was being celebrated in the campus of Durgabari, situated at Bela Bagan, Deoghar. The Puja was being organized by the local people. It is alleged that Chandra Bhanu Som (Opp. Party No. 1 in Cr. Rev. Nos. 388/2000 and 520/ 2001 and Opp. Party No. 2 in Cr. Rev. No. 369/2001), an I.A.S. Officer in Gujrat Cadre, wanted to disturb the Puja in order to grab the land of Durgabari premises. He discussed with the local boys to create obstructions in Durga Puja. He also utilized antisocial elements of the locality, namely, accused Samir Sinha, Munna Singh, Pintu Singh and others. Nunu Malviya (deceased), brother of the informant, was active worker of Durga Puja Samity. Accused Samir Sinha, Pintu Singh, Munna Singh and others, belonging to same group, had implicated Nunu Malviya in several criminal cases and they also threatened him to be killed. As these accused persons are the local boys, hence the informant and his brother Nanu Malviya (deceased) did not care the threatening, given by them. On 9-10-1997 accused Munna Singh (petitioner of Cr. Rev. No. 369 of 2001), Samir Sinha, Sanjay Rajbanshi, Daya Sunder Verma, Shyam Sunder Verma, Vijoy Singh, Punchu Nand Burnwal and Lalan Kumar were waiting behind the Electrical Transformer on Jasidih-Deoghar Road at Bela Bagan. As there was disturbance in supply of electricity, Nunu Malviya had gone there, who was surrounded by these named accused Samir Sihha and Pintu Singh, caught hold of Nunu Malviya and on the order of Samir Sinha to kill Nunu Malviya, accused Munna Singh (petitioner of Cr. Rev. No. 369 of 2001) fired with his pistol from blank range on the back of Nunu Malviya. Nunu Malviya on being injured fell down and died at Deoghar Sadar Hospital soon thereafter. The informant has alleged against the named accused persons that they with common intention to kill Nunu Malviya deceased entered into a conspiracy, because of the enmity, and killed him.
3. The police after investigation submitted charge-sheet against those accused persons. However, no evidence could be collected against Chandra Bhanu Som (Opp. Party No. 1 in Cr. Rev. No. 388/2000 and 520/2001 and Opp. Party No. 2 in Cr. Rev. No. 369/2001). After framing charges, prosecution examined 12 witnesses including P.Ws. 8 and 9, who are father and son and have deposed that it was Chandra Bhanu Som, who entered into conspiracy with other co-accused, facing trial, to disturb the Durga Puja so that the land on which Durga Mandap was constructed and Durga Puja was being celebrated in each year and which was donated by his ancestors for the purpose, should be re-claimed by him. Both the witnesses have deposed that only to grab the ancestral land, Uonated to Durga Puja Samiti, Bela Bagan, Deoghar, Chandra Bhanu Som disturbed the Puja and caused murder of the brother of the informant.
4. On 11-1-2000 a petition was filed on behalf of the State Under Section 319 of the Code to summon Chandra Bhanu Som to face trial along with other accused persons, facing trial in Sessions Case No. 66 of 1998. The learned 3rd Additional Sessions Judge, Deoghar, having heard both the parties, opined that no prima facie case of criminal conspiracy is made out against Chandra Bhanu Som and, accordingly, rejected the petition, filed on behalf of the prosecution.
5. Learned A. P. P. as also the learned counsel, appearing on behalf of Munna Singh (petitioner in Cr. Rev. No. 369 of 2001) have argued that the eye-witnesses have clearly deposed the Chandra Bhanu Som entered into conspiracy to cause murder of the brother of the inforrmant, only to grab the land on which Durga Mandap has been situated and each year Durga Puja is being celebrated. Learned, counsel for the petitioner Munna Singh (Cr. Rev. No. 369 of 2001) has submitted that although he is an accused in this case but he can also file Criminal Revision and has relied on a decision, reported in 1988 East Cr. Cases page 463 (sic). It is submitted on behalf of the petitioners that the police did not submit charge-sheet against Chandra Bhanu Som only because he is an I.A.S. Officer. The learned trial Court while rejecting the petition of the prosecution has considered certain paragraphs of the case diary and supervision note of the Sub-Divisional Police Officer, which are totally unwarranted for disposing of the petition, filed under Section 319 of the Code. The learned trial Court ought to have considered the evidences of all the witnesses in course of trial in the Court and then only would have considered the fact as to whether Chandra Bhanu Som has entered into conspiracy or not. P.W. 8 and P.W. 9 are the eye-witnesses, who have deposed that Chandra Bhanu Som (Opp. Party) has hatched up conspiracy to cause murder of Nunu Malviya, as he was active worker of Durga Puja Samity.
6. Learned counsel for the petitioners has relied upon a case, reported in AIR 2002 SC 2342 : (2002 Cri LJ 2969) (Smt. Rukhsana Khatoon v. Sakhawat Hussain) and submitted that accused, not charge-sheeted, can be summoned and arraigned as accused under Section 319 of the Code particularly when evidences of prosecution witnesses corroborate, the role of the person in the alleged occurrence.
7. On the other hand, learned counsel for Chandra Bhanu Som (Opp. Party) has submitted that the informant Sanjay Malviya (P.W. 9) has deposed that the land belongs to the ancestors of Chandra Bhanu Som, which was donated to the Durga Puja Samiti. Allegations against Chandra Bhanu Som is that he was trying to capture the land and property of Durga Bari with the help of antisocial elements, who are accused, facing trial in this case. He has further deposed that Chandra Bhanu Som and the accused persons had threatened the deceased in the morning of the alleged occurrence. There was enmity in between the deceased and accused, facing trial, regarding land broker-age business and they have instituted cases against each other. The deceased was not any office bearer of the Durga Puja Samiti. The office bearers of Durga Puja Samiti have not alleged anything against Chandra Bhanu Som that he disturbed the Puja only to recapture the land, where Durga Mandap is Situated. P.W. 9 has made contradictory statement, what he has stated before the Investigating Officer under Section 161 of the Code. The learned Court below has considered the evidence of all the 12 witnesses and rightly came to the conclusion that there is no sufficient material to summon Chandra Bhanu Som (Opp. Party) under Section 319 of the Code, which is to be used sparingly and has relied upon a decision, reported in (2000) 3 SCC 262 : (2000 Cri LJ 1706 : AIR 2000 SC 1127) (Michael Machado v. C.B.I.).
8. Learned counsel for Chandra Bhanu Som (Opp. Party) has submitted that there is no evidence or allegation against him regarding entering into conspiracy with the accused persons. There was no such agreement to commit murder of Nunu Malviya Durgabari Mandap is not the place where Nunu Malviya was murdered rather it is near the transformer. Petitioner Munna Singh, who is main accused in the case for causing murder of Nunu Malviya by shooting with his pistol, with an ulterior and mala fide motive has preferred Cr. Rev. No. 369 of 2001 so that complicity of the accused, facing trial may be diluted and the trial of the case be delayed. When there are two Cr. Revisions, one filed by the State of Bihar (Now Jharkhand) and the other by the State of Jharkhand through the Deputy Commissioner, Deoghar, there was no occasion to file third Criminal Revision by the main accused Munna Singh, Chandra Bhanu Som (Opp. Party) is not a criminal rather he is an I.A.S. Officer who has got no criminal history. On the other hand, the accused, who are facing trial, have got their criminal history.
9. The motive of the alleged murder of Nunu Malviya, brother of the informant, has been alleged that he was an active worker of Durga Puja Samiti. Chandra Bhanu Som (Opp. Party) wanted to disturb the Puja only to grab the land, which was donated by his ancestor to the Durga Puja Samiti. Only P.W. 8 and his father P.W. 9 (informant) have deposed that Chandra Bhanu Som (Opp. Party) had entered into conspiracy to cause murder of Nunu Malviya. None of the members or office bearers of Durga Puja Samiti, Bela Bagan, Deoghar, has alleged that only to grab the land, Chandra Bhanu Som (Opp. Party) wanted to disturb the celebration of Puja and entered into conspiracy to cause murder of Nunu Malviya. There is no evidence that Chandra Bhanu Som (Opp. Party) has entered into conspiracy with the accused, facing trial in this case. None of the witnesses, except father and son i.e. P.W. 9 and P.W. 8, has alleged anything regarding conspiracy hatched up by Chandra Bhanu Som (Opp. Party) to cause murder of Nunu Malviya. On the other hand, it is evident that there were criminal cases, pending in between the accused, facing trial in this case and the deceased, due to the land brokerage business at Deoghar.
10. Section 10 of the Indian Evidence Act provides that:
hings said or done by conspirator in reference to common design.-- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
Section 120B of the Indian Penal Code provides that:
"Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death (imprisonment for life) or rigorous imprisonment for a term of two years or upwards; shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months or with fine or with both."
11. In the present case, I find that there is no direct evidence of conspiracy hatched up by Chandra Bhanu Som (Opp. Party). The motive to cause murder of Nunu Malviya was only due to criminal cases, pending in between the deceased Nunu Malviya and the accused persons, who were on inimical terms. Chandra Bhariu' Som used to come every year on the occasion of Durga Pura to celebrate the same! In the year of the alleged occurrence, there was some difference regarding construction of Thermocol Gate of Puja Pandal but that was solved amicably. The family of Chandra Bhanu Som are the trustees of the Puja Samiti. A Mandap has been constructed on it and each year Durga Puja is being celebrated therein. In view of this fact, I find that Chandra Bhanu Som (Opp. Party) and his family members co-operate with the Durga Puja celebration each year. The lands of course, belong to their ancestors but that has been donated to Durga Puja Samiti. None of the office bearers i.e. President, Secretary or Members of the Durga Puja Samiti has alleged against Chandra Bhanu Som (Opp. Party) that he even tried to disturb Durga Puja celebration. Thus, I find that there is no connection regarding celebration of Durga Puja and the murder of Nunu Malviya, brother of the informant, which took place near the electrical transformer, situated towards south of Durgabari Gate oil the road. Thus, the place of occurrence is not Durgabari Mandap. The informant in his Fard-beyan has alleged that due to previous enmity, after entering into conspiracy, all the named eight accused persons caused murder of his brother. He has stated that Chandra Bhanu Som (Opp. Party) only to grab the land, had threatened his brother and also took help of antisocial elements to disturb Durga Puja. This statement of the informant regarding conspiracy entered into by Chandra Bhanu Som with the accused, facing trial in this case, has not been corroborated by all the prosecution witnesses except P.W. 9 and P.W. 8, who are father and son.
12. The learned Court below has considered the evidence of all the twelve prosecution witnesses in detail and has opined that the allegation of giving threat by Chandra Bhanu Som to the deceased a day prior to the occurrence and in the morning of the day of occurrence is subsequent developments. He did not find any agreement or conspiracy entered into by Chandra Bhanu Som with the accused, facing trial in this case, and found that no prima facie case under Section 120B of the Indian Penal Code is made out against Chandra Bhanu Som (Opp. Party) and, accordingly, rejected the petition dated 11-1-2000, filed on behalf of the State.
13. In view of the evidence available on record and the impugned order, passed by the learned trial Court, I find that there is no illegality or irregularity in the impugned order under revision. There is limited scope before the revisional Court, while passing order in revision. On the other hand, the learned Court below has considered the evidence of all the prosecution witnesses and passed the order, rejecting the petition. As such, the impugned order does not require any interference by this revisional Court.
14. Accordingly, all these Criminal Revision Application are hereby dismissed and the impugned order dated 24-1-2000, passed by the learned 3rd Additional Sessions Judge, Deoghar, in Sessions Trial No. 66 of 1998, is hereby affirmed.