Jharkhand High Court
Bhuneshwar Das & Anr vs State Of Bihar on 22 September, 2016
Author: Virender Singh
Bench: Virender Singh
1
Cr. Appeal (DB) No. 300 of 1991 (P)
[Against the judgment of conviction and order of sentence dated
31.07.1991passed by the 2nd Additional Sessions Judge, Deoghar in Sessions Case No. 85 of 1987/56 of 1990]
1. Bhuneshwar Das, son of Hari Das
2. Tarini Das, son of Dubraj Das
3. Suresh Das, son of Hari Das All resident of villageKhutta Bandh, PSMohanpur, DistrictDeoghar ... ... Appellants Versus The State of Bihar ... ... Respondent For the Appellants : Mr. Arvind Kr. Choudhary, Advocate Mr. S. N. Tiwari, Advocate For the Respondent : Mr. Awnish Shankar, APP P R E S E N T HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR Dated: 22 nd September, 2016 Per Shree Chandrashekhar, J.
Order dated 01.09.2016 reveals that the instant criminal appeal servives qua appellant no. 1Bhuneshwar Das, appellant no. 4Tarini Das and appellant no. 5Suresh Das only.
2. Aggrieved of judgment and order dated 31.07.1991 passed in Sessions Case No. 85 of 1987/ 56 of 1990, whereby all five accused persons who were put on trial have been convicted for committing offence u/s 302/149 IPC and for offence u/s 147 IPC and sentenced to undergo rigorous imprisonment for life for the main offence, have preferred the instant criminal appeal.
3. Heard.
4. The learned counsel for the surviving appellants contends that the fundamental error committed by the Sessions Judge is that it has completely overlooked the contradiction in the 2 statement of the witnesses in the Court visavis the protest petition. In a trial in which the witnesses deposed in the Court after one decade, chances of improvements are greater, and when this circumstance is analysised in reference to previous enmity between the parties, false implication of the accused persons cannot be ruled out.
5. We have carefully examined the materials brought on record and find that, on the basis of fardbeyan of Fageshwar Das recorded on 09.08.1978, a First Information Report against Bhuneshwar Das, Hari Das, Dubraj Das, Tarini Das and Suresh Das was registered for offence u/s 302/34 IPC. During investigation, the informant filed a protest petition on 26.08.1978. The police submitted Final Form and the trial court proceeded on the protest petition. The complainant was examined on solemn affirmation and in the enquiry held u/s 202 Cr.P.C. other witnesses were examined. Vide order dated 05.07.1984 the Chief Judicial Magistrate, Deoghar after rejecting the Final Form, issued summons to the accused persons and the case was committed to the court of sessions on 04.06.1987, for trial.
6. During the trial as many as seven witnesses were examined: informant was P.W.6 and the doctor who conducted the postmortem examination over the dead body was P.W.7. Two witnesses were examined by the defence also. It appears that the defence produced FIR, protest petition and other documents disclosing previous litigation between the parties. P.W.1 and P.W.2 claimed themselves as eyewitnesses to assault upon the deceased Satyadeo Das. P.W.3 and P.W.5 claimed that they had seen the accused persons carrying the dead body of the deceased on the next morning.
7. The prosecution story is that, the informant along with his father had gone to Gram Kutchery and after they returned home late in the evening they found that Satyadeo Das had not 3 returned back. Her mother informed them that Satyadeo was complaining that the accused persons had been threatening him. It was claimed that previously also accused persons chased Satyadeo Das and the incident was witnessed by one Kunta Das and Rajkumar Das (P.W.1). On the next morning the dead body of the deceased Satyadeo Das was found near Ropani Colony Bandh. The informant claimed that the police did not record his entire statement and they came in influence of the accused persons and hence, the protest petition.
8. On rescanning the entire evidence; prosecution as well as the defence, we find that neither in the fardbeyan nor in the protest petition which was filed much after the occurrence, the informant took a stand that P.W.1 and P.W.2 are eyewitnesses. Even in the court these witnesses have only alleged that accused Tarini Das chased and caught hold of the deceased whereas, accused Bhuneshwar Das gave 34 lathi blow on him. The medical evidence reveals that the death occurred due to asphyxia by strangulation. Admittedly, there is no evidence on record that the above named two accused persons strangulated the deceased. Not only that, in the protest petition the informant/complainant has not even alleged that P.W.3 and P.W.5 had seen the accused persons carrying the dead body of the deceased and dumping it near Ropani Colony Bandh. The alleged occurrence took place on 08.08.1978 and the material witnesses were examined in the year 1989, i.e., after more than a decade. We cannot lose sight of the fact that, by that time the informant and other witnesses had the benefit of opinion of the doctor and to construct a story, which was not even pleaded in the protest petition.
9. In fact, fardbeyan by the informant and the protest petition were not exhibited by the prosecution. Obviously, because these documents favour the defence. A perusal of the impugned judgment of conviction and order of sentence, both dated 31.07.1991 discloses that it is a mere reproduction of the 4 statement of the witnesses. The trial judge has failed to appreciate the evidence of the witnesses which on face of it is not only substantial improvement on material aspects from the case made out in the protest petition, the witnesses projected as eyewitnesses were never shown as eyewitnesses by the informant either in his fardbeyan or in the protest petition filed by him.
10. The aforesaid facts and the circumstances appearing in the case prompt us to extend benefit of doubt to the accused persons. The prosecution story as projected during the trial is not supported by any reliable evidence.
11. Considering the aforesaid facts, we are of the opinion that the impugned judgment of conviction and sentence both dated 31.07.1991 is liable to be setaside and the instant criminal appeal deserves to be allowed. Ordered accordingly.
12. Before we wrap up, what disturbs us in the instant appeal is that the paper book prepared by the concerned branch is not complete, as many important documents are not forming part of the paperbook supplied to learned counsel for both the sides, therefore, while taking us through the prosecution evidence they had to refer to the original records time and again. Assistant Registrar of the criminal branch to take it seriously, so that, such type of lapse does not occur in future.
(Virender Singh, C.J.) (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 22nd September, 2016 Tanuj/ N.A.F.R.