Jharkhand High Court
Mangal Singh Birua vs The State Of Jharkhand on 18 October, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
1
Cr. Appeal (DB) No. 1634 of 2017
With
Cr. Appeal (D.B.). No. 252 of 2021
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[Against the judgment of conviction dated 31.07.2017 and order of sentence dated 1.8.2017, passed by Shri Rama Kant Mishra, learned Additional Sessions Judge-II, West Singhbhum at Chaibasa in S.T. No. 4 of 2021/S.T. No. 137 of 2011.
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1. Mangal Singh Birua.
2. Dursu Birua.
3. Koka Ban Singh @ Chhota Dusu @ Chhota.
4. Kitti @ Kitti Birua.
....Appellants in Cr. Appeal (D.B.). No. 1634 of 2017
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Jaipal Singh Birua .... Appellant in Cr. Appeal (D.B.). No. 252 of 2021 Versus The State of Jharkhand. ....Respondent in both the cases
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For the Appellants : Mr. Vishal Kumar Tiwary, Advocate : Mr. S.M. Mudassar Nazar, Advocate For the Respondent : Mr. Vineet Kumar Vashistha, A.P.P. PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH
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C.A.V. On 22.06.2022 Pronounced on 18/10/2022 Heard Mr. Vishal Kumar Tiwary, learned counsel for the appellants and Mr. Vineet Kumar Vashistha, learned A.P.P.
2. Both these appeals are directed against the judgment of conviction dated 31.07.2017and order of sentence dated 1.8.2017, passed by Shri Rama Kant Mishra, learned Additional Sessions Judge-II, West Singhbhum at Chaibasa in S.T. No. 4 of 2011/S.T. No. 137 of 2011, whereby and whereunder the appellants in Cr. Appeal ( D.B.). No. 1634 of 2017 have been convicted for the offences punishable under sections 302/34 and Section 201/34 of the Indian Penal Code 2 Cr. Appeal (DB) No. 1634 of 2017 With Cr. Appeal (DB) No. 252 of 2021 and have been sentenced to imprisonment for life along with a fine of Rs.20,000/- for the offence under section 302/34 IPC and in default in payment of fine to undergo further rigorous imprisonment of six months. They have further been sentenced to undergo rigorous imprisonment for three years along with a fine of Rs.10,000/-each for the offence punishable under section 201/34 IPC and in case of default in payment of fine to further undergo rigorous imprisonment of six months. So far as the appellant in Cr. Appeal (D.B.) No. 252 of 2021 is concerned, he has been convicted for the offence punishable under section 201/34 IPC and has been sentenced to undergo rigorous imprisonment for three years along with a fine of Rs.10,000/- and in default in payment of fine to undergo rigorous imprisonment for a further period of six months.
3. The fardbeyan of Urmila Birua was recorded on 3.3.2010, in which it has been stated that on 2.3.2010 at about 10.30 P.M., on hearing a commotion, she had gone to the house of village Munda-Jaipal Singh Birua where she had seen Koka Ban Singh catching hold of her husband-Mangal Singh Birua by putting a 'gamchha' in his neck and he was being assisted by Dursu Birua, Kitti Birua and Mangal Singh Birua. Koka Ban Singh was telling the Munda that the husband of the informant had committed rape upon his wife, at which the Munda told them to take him away. It has been alleged that the accused persons thereafter had dragged the husband of the informant outside and tied him up in a 'Babul' tree at Upri Tola. All the accused persons started assaulting him with lathi and danda, which resulted in his death. The informant had pleaded with them to spare her husband but the same fell on deaf ears. Feeling helpless, she returned back home. In the morning at 5 A.M., Motka Sidiu and Kitti Birua brought the dead body of her husband and kept it in the alley besides the house of the Munda and went away. The Munda had come to the house of the informant at 8 A.M., and told her to take away the dead body of her husband and cremate it. The informant had brought back the dead body of her husband and the Munda again came and told her to cremate the dead body. As per the direction of the Munda, the dead body of her husband was cremated by her.
4. Based on the aforesaid allegations, Manjhari P.S. Case No. 11 of 2010 was instituted for the offence punishable under section 302/34 IPC against five named accused persons. On completion of investigation, charge sheet was submitted against 11 persons under sections 302/201/34 IPC. Investigation continued against two unnamed accused persons and ultimately supplementary charge sheet was submitted against Chandrasekhar Birua @ Chambaru Birua and Chandra Birua under sections 302/201/34 IPC. Cognizance was taken of the offence against 11 accused persons vide order dated 1.12.2010 and the 3 Cr. Appeal (DB) No. 1634 of 2017 With Cr. Appeal (DB) No. 252 of 2021 case was committed to the court of sessions where it was registered as S.T. No. 4 of 2011. On submission of supplementary chargesheet, cognizance was taken against two accused persons and their case was also committed to the court of sessions where it was registered as S.T. No. 137 of 2011. Vide order dated 15.12.2011, the case record of S.T. Case No. 137 of 2011 was amalgamated with S.T. Case No. 4 of 2011. On 10.05.2012, charge was framed against all the thirteen accused persons for the offences punishable under sections 302/34 and 201/34 IPC, which was read over and explained to the accused in Hindi, to which they pleaded not guilty and claimed to be tried.
5. The prosecution has examined as many as nine witnesses in support of its case.
P.W-1-Shyam Bihari Manjhi has deposed that he had taken over the investigation from Shyam Narayan Bhaskar on 20.06.2010. He has identified the signature and handwriting of Suresh Ram, S.I. in the fardbeyan, which has been marked as Ext-1. He had submitted two chargesheets against the accused persons.
P.W-2-Urmila Devi Birua has deposed that the incident is of four years back. On 3.3.2010, there was a festival in the village and her husband had also gone to the house of Deori to participate in the singing and dancing going on. He did not come back. In the morning, the Munda of the village-Jaipal Singh Birua had come to her house and disclosed that Kitti, Koka Ban Singh, Motka, and Mangal Singh Birua have brought her husband to his house. She went to the house of the Munda and saw the dead body of her husband lying outside the house. The Munda then disclosed that since her husband had committed rape upon the wife of Koka Ban Singh, as such Koka Ban Singh, Kitti Birua, Mangal Singh and Dursu had committed his murder. She has stated that the involvement of these four persons were disclosed to her by Narayan Birua. On the advice of the Munda, she cremated her husband. She has identified her signature as well as the signatures of Narayan Birua, Geeta Birua and Bhushan Birua on the fardbeyan, which have been marked as Exts-1/1 to ¼. She has also identified her signature in the statement recorded before the Magistrate and which has been marked as Ext-2. She has identified Kitti Birua, Koka Ban Singh, Dursu Birua and Mangal Singh Birua in the court.
In cross-examination, she has deposed that she had come to know about the occurrence from the Munda and Narayan. The Investigating Officer had told her what to state before the Magistrate. Even after seeing the dead body of her 4 Cr. Appeal (DB) No. 1634 of 2017 With Cr. Appeal (DB) No. 252 of 2021 husband, she did not inform the police. She has further stated that she belongs to the Ho community and as per custom, dead bodies are buried.
P.W-3-Bhushan Birua has deposed that the incident is of four years back. It was morning and he was awake when he had seen Koka Ban Singh, Dursu Birua, Aandaro Birua, Mujen and Rashi Birua taking away the dead body of Mangal Singh Birua on a bullock cart. The body was taken to the house of the Munda-Jaipal Singh Birua. He has identified his signature in the fardbeyan, which has already been marked as Ext-1/4.
In cross-examination, he has deposed that even after seeing the dead body he had not informed the police but had intimated Narayan. He does not know as to by whom Mangal Singh Birua was murdered and where. He had not disclosed to the police the name of any of the accused. There were no one else behind the bullock cart except the accused persons.
P.W.-4-Geeta Birua has stated that the incident is of the year 2010. At about 12 in the night, there was a quarrel between her brother Mangal Singh Birua and the wife of Koka Ban Singh in the house of Koka Ban Singh. At that time, there was song and dance going on in the village. She has stated that after the quarrel, her brother was tied with a gamchha and taken to Upar Toli by Koka Ban Singh, Dursu Birua, Mangal Singh Birua, Kitti Birua, Mota Siddu and Charan Siddu. He was thereafter tied to a 'babul' tree and assaulted, as a result of which, he died and the accused persons had kept the dead body in front of the house of the Munda. In the morning, Jai Pal Munda had come to her house and told them that the body of Mangal Singh Munda is lying in front of his house and they should bring it and burn the dead body. She has identified her signature as a witness in the fardbeyan, which has already been marked as Ext-1/3.
In cross-examination, she has deposed that the song and dance was going on at a distance of 200 yards from her house. She was sleeping. She has further stated that the incident of assault had taken place at Upar Toli, which is at a distance of three kilometers from her house. In spite of witnessing the assault, she had not informed the police. The incident was reported to the police by Narayan Birua and on return, this witness and the others were informed by him about the incident.
P.W-5-Amarsingh Hembrom @ Sokha Hembrom and P.W-6-Nanika Hembrom @ Tunu Hembrom did not the support the case of the prosecution and were accordingly declared hostile by the prosecution.
5 Cr. Appeal (DB) No. 1634 of 2017 With Cr. Appeal (DB) No. 252 of 2021 P.W-7-Suresh Ram was posted as an Officer in Charge of Manjjhari P.S. and on 3.3.2010, an information was received that a person has been murdered in village-Barkundia. After entering a station diary, he had proceeded to the place of occurrence. At 7 P.M., he had recorded the fardbeyan of Urmila Birua. He has proved the fardbeyan, which has been marked as Ext-3. He had recorded the restatement of the informant and had also inspected the place of occurrence, which is the unmetalled road from Barkundia Uper Tola to Tunga village. There is a 'babul' tree, in which the deceased was said to have been tied and assaulted by the accused persons. He had recorded the statement of Geeta Birua and Bhushan Birua. Since the ashes of Mangal Singh Birua had been washed away, no bones or ashes of the deceased could be collected. The investigation of the case was handed over by him to S.N. Bhaskar. He has proved the formal FIR, which has been marked as Ext-4.
In cross-examination, he has deposed that a dispute was already existing between the accused and the informant and her family.
P.W-8-Shyam Narayan Bhaskar has deposed that he had taken over the investigation from Suresh Ram. In course of investigation, he had recorded the statement of Sokha Hembrom and Tuni Hembrom. Sokha Hembrom had stated that on the occasion of Baha festival he had come to the house of Urmila Birua along with his wife and after having meal he had slept there. In the morning, the village Munda had come and disclosed that the dead body of Mangal Singh Birua was lying in front of his house. The dead body was brought to the house with the assistance of Tuni @ Tona Hembrom, Geeta and the informant. On the advice and pressure of the Munda, the body was cremated. He later on came to know that Koka Ban Singh, Mota Sidu, Mangal Singh Birua, Dursu Birua and Kitti Birua had tied the husband of the informant to a 'babul' tree and assaulted him with lathi and danda and the dead body was thrown in front of the house of the Munda. The witness-Tuni Hembrom had also given a statement similar to that of Sokha Hembrom. The statements of Urmila Birua, Tuni @ Tona Hembrom, Geeta Birua, Sokha Hembrom and Narayan Birua were got recorded under section 164 Cr.P.C. before the Judicial Magistrate, 1st class, Chaibasa. On account of his transfer to Special Branch, Ranchi, the investigation was handed over to Shyam Bihari Manjhi.
In cross-examination, he has deposed that in course of investigation, neither he had recorded the statement of the informant nor had he inspected the place of occurrence.
6 Cr. Appeal (DB) No. 1634 of 2017 With Cr. Appeal (DB) No. 252 of 2021 P.W-9-Nirupam Kumar was posted as a Judicial Magistrate, 1st class in Chaibasa Civil Court and on 11.3.2010, on the orders of the Chief Judicial Magistrate, Chaibasa he had recorded the statements of Urmila Birua and Jonu Hembrom under section 164 Cr.P.C. He has proved both the statements, which have been marked as Exts-5 and 6 respectively. On 15.03.2010, he had recorded the 164 Cr.P.C. statement of Geeta Birua and Sokha Hansda, which have been marked as Ext-7 and 8 respectively. He had also recorded the 164 Cr.P.C. statement of Narayan Birua, which has been proved and marked as Ext-
9.
6. The statements of the accused persons were recorded under section 313 Cr.P.C., in which they have denied their involvement in the commission of the murder.
7. Mr. Vishal Kumar Tiwary, learned counsel for the appellants, has submitted that there are no eye witnesses to the occurrence. The informant, who has been examined as P.W-2, had stated in her fardbeyan that she had witnessed the incident but in her testimony during trial she has not even whispered that she had seen the entire episode. It has been submitted that in 'Ho' customs, dead bodies are buried but in this case the dead body of Mangal Singh Birua was burnt purportedly on the advice of the village Munda but such act would not come within the purview of Section 201 IPC.
8. Mr. Vineet Kumar Vashistha, learned A.P.P., has countered such submissions by strongly relying upon the evidence of P.W-2, P.W-3 and P.W-4 while submitting that there are strong circumstantial evidence that the murder of Mangal Singh Birua was committed by the appellants in Cr. Appeal (D.B.). No. 1634 of 2017 and it was at the insistence of the appellant in Cr. Appeal (D.B.). No.252 of 2021 that the dead body was burnt thus destroying whatever evidence could have been gathered had the dead body been buried.
9. We have heard the rival submissions and have also perused the Lower Court Records.
10. In the fardbeyan, the informant has claimed to have witnessed the assault committed upon her husband by the accused persons. He was tied to a 'babul' tree and assaulted with lathi and danda and resultantly he died. She had pleaded with the accused to spare her husband but of no avail. She had returned back to her house feeling helpless.
11. The informant has been examined as P.W-2 and she seems to have narrated an entirely different story to the effect that she had come to know about 7 Cr. Appeal (DB) No. 1634 of 2017 With Cr. Appeal (DB) No. 252 of 2021 the incident from the village-Munda and Narayan Birua. The statement of Narayan Birua under section 164 Cr.P.C. was recorded but he has not been examined as a witness by the prosecution. The fardbeyan of P.W-2 was also signed by Geeta Birua ( P.W-4) and though in her examiantion in chief she has stated about the manner of assault and the persons involved in the same but in her cross-examination, she has deposed that she was sleeping while the song and dance programme was going on at a distance of 200 yards from her house and Upar Toli the place where the assault had taken place is at a distance of three kilometer from her house. She, therefore, is not an eye witness to the occurrence. Even if it is assumed that she had witnessed the occurrence but her conduct seems to be contrary to a normal human reaction as she had not informed the police about the occurrence. However, irrespective of her conduct, her cross-examination has demolished the edifice she had built in her examination in chief of having witnessed the incident. So far as the testimony of P.W-3 is concerned, he has stated about the accused persons taking away the dead body of Mangal Singh Birua in a bullock cart though in his cross- examination, he has admitted that he does not know as to who had committed the murder and the place where the murder was committed. This witness has also desisted from informing the matter to the police but instead had informed Narayan. Narayan Birua seems to have been assigned a pivotal role by P.W-2, P.W-3 and P.W-4 as all have stated about Narayan Birua being somehow or the other connected with the incident by having knowledge of the same but his not being examined by the prosecution has led to the evidence of P.W-2, P.W-3 and P.W-4 in whatever roles Narayan Birua has been assigned remaining uncorroborated.
12. The learned trial court had overtly relied upon the evidence of P.W-2, P.W- 3 and P.W-4 while convicting the appellants in Cr. Appeal (D.B.). No. 1634 of 2017 for the offence punishable under section 302 IPC though on a careful scrutiny of their testimonies, it is apparent that neither there are any eye witnesses to the occurrence nor the chain of circumstances are complete to attract conviction under section 302 IPC.
13. So far as the conviction under section 201/34 IPC is concerned, it seems that all the appellants have been convicted under the said provision.
14. The conviction of the appellants in Cr. Appeal (D.B.). No. 1634 of 2017 under section 201/34 IPC is based upon the evidence of P.W-3 as it was he who had seen the appellants carrying the dead body of Mangal Singh Birua on a bullock cart. The evidence of P.W-3 has not been corroborated by any of the 8 Cr. Appeal (DB) No. 1634 of 2017 With Cr. Appeal (DB) No. 252 of 2021 witnesses and he had also not disclosed the name of the accused persons before the police. The evidence of P.W-3 in absence of any corroboration and there being contradictions cannot be relied upon for bringing home the charge under section 201/34 IPC so far as the appellants in Cr. Appeal (D.B.). 1634 of 2017 are concerned.
15. The role of the appellant in Cr. Appeal (D.B.). No. 252 of 2021 has been restricted to causing disappearance of evidence. Under section 201 IPC mere suspicion is not sufficient to convict an accused. The appellant Jaipal Singh Birua is the village Munda and it was on his advice, P.W-2 had cremated her husband. P.W-4 has also stated about being informed by this appellant to cremate the dead body. The evidence of P.W-2 and P.W-4 do not indicate that the act of burning the dead body was done surreptitiously. The appellant had told P.W-2 and P.W-4 to dispose of the dead body in the morning and the reason for such advice as could be gathered from the evidence of P.W-2 and P.W-4 is on account of the dead body lying in front of the house of the appellant. The knowledge or the act of cremating the dead body was not confined to a solitary person and if at all there was a blink of suspicion either P.W-2 or P.W-4 would not have heeded such advice. It also appears that Sokha Hembrom and Tuny Hembrom in their evidence before the Investigating Officer (P.W-8) as well as in their 164 Cr.P.C. statement had stated about the pressure created by the appellant in cremating the dead body but both on being examined as P.W-5 and P.W-6 have been declared hostile by the prosecution. There has to be an inducement in causing disappearance of evidence in whatever capacity it may be but certainly would not include an advice, which can be termed to be an act to prevent the real culprits to be brought to books. The appellant in Cr. Appeal (D.B.). No. 252 of 2021 therefore could not have been convicted for the offence under section 201/34 IPC.
16. It is, therefore, held that the prosecution has miserably failed to prove its case and as a consequence thereof we hereby set aside the judgment of conviction dated 31.07.2017 and order of sentence dated 1.8.2017, passed by Shri Rama Kant Mishra, learned Additional Sessions Judge-II, West Singhbhum at Chaibasa in S.T. No. 4 of 2021/S.T. No. 137 of 2011, whereby and whereunder the appellants in Cr. Appeal (D.B.). No. 1634 of 2017 have been convicted for the offence punishable under sections 302/34 and 201/34 of the Indian Penal Code and have been sentenced to imprisonment for life along with a fine of Rs.20,000/-for the offence under section 302/34 IPC along with a fine of Rs.20,000/- and in default in payment of fine to undergo further rigorous imprisonment of six months and have further been sentenced to undergo 9 Cr. Appeal (DB) No. 1634 of 2017 With Cr. Appeal (DB) No. 252 of 2021 rigorous imprisonment for three years along with a fine of Rs.10,000/-each for the offence punishable under section 201/34 IPC and in case of default in payment of fine to further undergo rigorous imprisonment of six months and the appellant in Cr. Appeal ( D.B.) No. 252 of 2021 has been convicted for the offence punishable under section 201/34 IPC and has been sentenced to undergo rigorous imprisonment for three years along with a fine of Rs.10,000/- and in default in payment of fine to undergo rigorous imprisonment for a further period of six months.
17. These appeals are allowed. Since the appellants in Cr. Appeal (D.B.). No. 1634 of 2017 are in custody, they are directed to be released forthwith if not wanted in any other case. In so far as the appellant in Cr. Appeal (D.B.). No.252 of 2021 is concerned, he is discharged from the liability of his bail bond.
Pending I.As, if any, stand disposed of.
(Rongon Mukhopadhyay,J) (Ambuj Nath, J) Jharkhand High Court, Ranchi Dated_18th October, 2022 Rakesh/NAFR