Jharkhand High Court
Sarju Ghorel And Ors. vs State Of Bihar (Now Jharkhand) on 23 January, 2006
Equivalent citations: 2006 CRI. L. J. 1885, 2006 (1) AIR JHAR R 676, 2006 (1) BLJR 238, 2006 BLJR 1 238, (2006) 1 EASTCRIC 379
Bench: S.J. Mukhopadhaya, Chief Justice, M.Y. Eqbal
JUDGMENT
1. Appellant Sarju Ghorel, Diwakar Ghorel, Bijoy Kapari and Madan Kapari were arrayed as A-5, A-l, A-4 and A-2 respectively in Sessions Case No. 330 of 1986 before the Additional Sessions Judge, Godda and Along with them three others were Also arrayed as accused Nos. 3, 6 and 7. In this judgment, the appellants as well as other accused will be referred as A-1 to A-7 for the sake of convenience.
2. Seven accused were tried for the offences punishable under Sections 147, 148, 324, 379 and 302/34 IPC. The trial Judge found the appellants alone guilty and sentenced each of them to imprisonment for life under Section 302/34 IPC. Appellants Sarju Ghorel (A-5) and Bijoy Kapari (A-4) were also found guilty under Section 148 IPC, while appellant Madan Kapari (A-2) was found guilty under Section 147 IPC. On being found guilty under Section 148 IPC, Sarju Ghorel (A-5), Diwakar Ghorel (A-1) and Bijoy Kapari (A-4) were sentenced to two years' R.I. and under Section 147, IPC., appellant Madan Kapari (A-2) was sentenced to undergo one year's R.I. All the appellants were acquitted under Sections 379 and 324, IPC. The present appeal is against the said conviction and sentence,
3. The facts are:
The deceased, Bhuneshwar Mandal is the younger brother of Jagdish Mandal (since dead). PW.4 Karuna Devi is the wife of deceased Bhuneshwar Mandal. PW.2 Ashok Mandal is the son of Jagdish Mandal. PW.3 Bania Devi is the sister of the deceased. On getting information from his brother, Jagdish Mandal, about the health condition of his child, the deceased Bhuneshwar Mandal, who was a teacher by profession, reached his house. On the morning of 25-4-1985, PWs. 2,3,4 the deceased and Jagdish Mandal left for Godda. Deceased Bhuneshwar Mandal and Jagdish Mandal were travelling by cycle. They wanted to take the child to Godda to a doctor for treatment. The informant was sitting on the carrier of the bicycle. When the deceased and Jagdish Mandal reached Dumariya forest, they found PW.4, the wife of the deceased, PW.2 the informant's son and PW.3 there who had left early for Godda. On seeing them, Jagdish Mandal asked them not to waste time and they should proceed to Godda for consulting a doctor. At that moment, 10-20 persons came out of the Jungle. Jagdish Mandal was able to identify Diwakar Ghorel (A-1), Madan Kapri (A-2), Bijoy Kapari (A-4) and Sarju Ghorel (A-5). On seeing the prosecution party, Diwakar Ghorel (A-l), with a dagger and Bijoy Kapari (A-4), with a Bhala surrounded the deceased as well as Jagdish Mandal. A-5 Sarju Ghorel gave a blow on the neck of the deceased Bhuneshwar Mandal who fell down dead. A-l Diwakar Ghorel inflicted a cut injury on the abdomen of the deceased. The occurrence was witnessed by PWs.2 and 4. The 1st accused Diwakar Ghorel, with a dagger, attacked Jagdish Mandal but it was warded off. Sarju Ghorel (A-5) snatched the bicycle from the deceased and Diwakar Ghorel (A-l) took away his wristwatch. All the accused then disappeared into the Jungle. Jagdish Mandal, telling PW.3 that he is going to village Denha to inform the Chaukidar, left the place. In the meantime, on getting information about the occurrence, the Assistant Sub. Inspector of Police (ASI) of Porayahat Police Station reached the scene of occurrence at about 10.00 a.m. The statement given by Jagdish Mandal at the scene of occurrence was recorded on the basis of which a crime was registered at the Police Station. Investigation of the crime was taken up by the A.S.I.
4. On taking up investigation in the crime, the A.S.I. conducted inquest by examining the witnesses and sent the dead body of Bhuneshwar Mandal to the hospital with a requisition requesting the doctor to conduct autopsy.
5. The Medical Officer (PW. 1), on receipt of the requisition from the A.S.I. Md. Abdul Sakur and the dead body of Bhuneshwar Mandal, conducted autopsy. The doctor found the following injuries on the dead body:
i. Incised wound 6" x 2/2" x soft tissue and bone deep obliquely on the right side neck from mustoid region to left side neck 1" lateral to midline cutting some part of pinna of right ear, blood vessels muscles bone, trachea and oesophagus.
ii. Incised wound 1/2" x 1/2"x 1/2" obliquely in front of the right ear.
iii. Incised wound 2/2" 1/s" obliquely 1/2'' below injury No. i.
iv. Two incised wounds 2/2" x 1/2" x 1/4" x 1/2" soft tissue and bone deep obliquely 2" below injury No. iii.
v. Incised wound 1/2" x 1" x thoracic cavity deep obliquely in front of right chest 1" lateral to sternum.
vi. Incised wound 1/4" x 1" x bone deep obliquely 3" below and behind injury No. v.
vii. Three incised wounds 2/4" x 1/2" 1/2", 1/2" x 1/2" x 1/2" and l" x 1/2" x 1/2" obliquely on right arm.
viii. Incised wound 7/2" x 2/2" x peritoneal cavity deep longitudinally midorcy (sic) upper part with omentum and intesting out of abdominal cavity.
ix. Incised wound 3/2" x 1/2" x soft tissue deep on the left inguinal region.
x. Six incised wounds of 1/2" x 1/2" x 1/2" in the area of 2/2" diameter on the right flank of abdomen.
xi. Incised wound 1/2" x 1/2" x peritoneal cavity deep obliquely on the right abdomen upper part.
The doctor, on dissection, found right lung injured Along with heart empty and blood in thoracic cavity. The doctor issued Ext. 1 the post mortem report. In his opinion, the death was on account of the injuries which were sufficient, in the ordinary course of nature, to cause the death.
6. Alter completion of the investigation, final report was filed against the appellants and other acquitted accused.
7. When the accused were questioned on the incriminating circumstances appearing against them, they denied their complicity and pleaded innocence.
8. Mr. M.K. Sinha, who was appointed as Amicus Curiae on behalf of the appellants, contends before us that since the occurrence had taken place in the jungle which is at a distance of 20 k.m. from Porayahat Police Station and the prosecution having not examined the A.S.I. Md. Abdul Sakur who, according to the prosecution, received the information about the incident and the prosecution not having marked the Station Diary in spite of being summoned by the defence, has failed to show the nature of the Information received by the said A.S.I. Md. Abdul Sakur. In the above background, the possibility of the FIR statement coming into existence at a later point of time could not be ruled out as the said complaint admittedly was sent to the Court only on 27-4-1985. He, therefore, submits that the present prosecution case must be an afterthought and that PWs. 2 and 4 being closely related to the deceased, must have been projected as eye witnesses to the occurrence on account of prior enmity especially when admittedly both Jagdish Mandal, the informant in this case, and the accused party are involved in criminal cases.
9. We have heard Mr. R. Mukhopadhaya, learned Counsel appearing on behalf of the State, on the above contention and perused the materials placed before us.
10. There is no dispute as regards the cause of death of Bhuneshwar Mandal. The doctor (PW. 1) who conducted autopsy and issued Ext. 1, the post mortem certificate, categorically gave evidence that the death was on account of shock and haemorrhage due to the injuries which were sufficient, in the ordinary course of nature, to cause death. The fact that Bhuneshwar Mandal died on account of the injuries suffered by him was not disputed before the trial Court and it is also not disputed before us. We, therefore, on the Medical evidence, hold that Bhuneshwar Mandal died on account of homicidal violence,
11. The prosecution, in order to establish that the appellants and the other accused caused Injuries on Bhubneshwar Mandal, has relied upon the evidence of PW.2, the son of the Informant Jagdish Mandal and, FW.4, the wife of deceased Bhuneahwar Mandal. The prosecution could not examine Jagdish Mandal, the informant in this case, as he died pending trial, though a feeble attempt has been made by the counsel before us to show that Jagdish Mandal was very much Alive during trial and he was not deliberately produced before the trial Court which was not pursued with seriousness. In the absence of any material to show that Jagdish Mandal was Alive during trial and that he was deliberately withheld from being produced as a witness before the trial Court, we hold that Jagdish Mandal was not examined by the prosecution as he was not Alive when the trial commenced.
12. We have to now consider the evidence of PWs/2 and 4 who, according to the prosecution, witnessed the occurrence.
13. Both PWs.2 and 4 are admittedly the relatives of the deceased. We have perused the evidence of PWs.2 and 4. Both of them have stated that the appellants and the other accused inflicted injuries on the deceased, Bhuneshwar Mandal at Dumariya Jungle at about 7.45 a.m. The evidence of PW.3, who is not an eyewitness, is to the effect that after the occurrence, Jagdish Mandal (informant since dead), left for village Denha after informing PW.2 that he is going to village Denha to inform the Chaukidar. In this background, we have to consider the submissions of the learned Counsel. We have already noted that the learned Counsel has submitted that there is no evidence on record to show as to how the A.S.I. Md. Abdul Sakur received the information about the occurrence and as to show he reached Dumariya forest within three hours, since admittedly the scene of occurrence was at a distance of 20 k.m. from the police station. We find that there is some substance in the argument of the learned Counsel for the following reasons.
14. We have already noted that according to the prosecution, Jagdish Mandal left Dumariya forest after the incidence telling FW.2 that he is going to village Denha to inform the Chaukidar. So the case of the prosecution itself is that Jagdish Mandal did not go to the police station to lodge complaint, but on the contrary, the case of the prosecution itself is that Jagdish Mandal went to Denha village. If that be so, it is for the prosecution to explain as to how the A.S.I Md. Abdul Sakur received the information about the occurrence for him to have reached the scene of occurrence to record the statement of Jagdish Mandal. If Jagdish Mandal had left for village Denha, then he cound not have been present at the scene of occurrence at 10.15 a.m. for giving a statement to the A.S.I, and if it is to be presumed that Jagdish Mandal returned from village Denha, then it is for the prosecution to ex-plain as to why Jagdish Mandal did not think it necessary to go to the police station to lodge the complaint after giving information to the Chaukidar at Denha. It is also worthwhile to remember here that the said Chaukidar of Denha village was not examined by the prosecution and had he been examined, then he could have given evidence as to whether Jagdish Mandal met him on that day and gave the details of the incident.
15. In this background, non-examination of the A.S.I. Md. Abdul Sakur also assumes importance. On perusal of the record and the findings given by the trial Judge, we find that the summons were issued to the A.S.J. to appear before the trial Court for giving evidence but he did not turn up. It could also be seen that as the Officer did not turn up, warrants of arrest were issued but in spite of issuance of non-bailable warrant of arrest, he could not be apprehended and produced before the Court to be examined as a witness. It is, therefore, clear that the A.S.I. Md, Abdul Sakur did not choose to go into the witness box to give evidence. Had he been examined, then he could have explained as to how and from whom he got the information as regard the occurrence making him to go to Dumariya Jungle for the purpose of recording the statement alleged to have been given by Jagdish Mandal. The said statement of Jagdish Mandal has not only been not marked but the prosecution made it much worst by not even producing the station diary which was specifically summoned by the defence to establish that the A.S.I. Md. Abdul Sakur roust have received some information which is contrary to the present prosecution version.
16. On going through the materials and the judgment of the trial Court, we find that steps were taken by the defence to summon the station diary which was not produced in spite of several opportunities given to the prosecution. The prosecution did, not also explain the reason for not producing the said document in spite of it being summoned by defence. The prosecution not only did not examine the Officer who allegedly recorded the statement of Jagdish Mandal, it also did not mark the said document and also did not produce the station diary of Porayahat Police station. If the station diary had been produced, then it could have shown the nature of the information received by the said A.S.I. for him to have gone to the scene of occurrence or it would have shown that there was no information at all at the Police Station on that day regarding the incident. Non-production of the said station diary and non-examination of the said A.S.I. are, therefore, fatal to the prosecution and the Court cannot but draw an adverse inference against the prosecution. The Court is only to presume that if the station diary had been produced, it would have shown that there was no information regarding the incident at the police station on that day and, therefore, it was not produced and it could have also shown that information regarding the occurrence must have been given much later and therefore there was delay in dispatching the FIR to the Court.
17. In view of the above, we find it difficult to accept the prosecution version that; the occurrence took place in the manner suggested by it and that the complaint was recorded at 10.15 a.m. It is also difficult to accept the prosecution versions that Jagdish Mandal left PW.4 and PW.2. who was aged about 15 years, in the Jungle with a view to go to the village to inform the Chaukidar. It is also difficult to believe that Jagdish Mandal would have left women and a child in the jungle and that the Police Officer reached the Jungle and recorded the statement of Jagdish Mandal. Once we reject the very foundation of the prosecution, version, then evidence of PWs. 2 and 4 becomes suspect as the case could have been shaped at a later point of time by the witnesses with a view to take vengeance on the accused, since admittedly both parties were involved in criminal cases. We, therefore, do not find it safe to accept, the evidence of PWs.2 and 4 to find the appellants guilty.
18. We, therefore, allow this appeal by setting aside the conviction of the appellants. It is reported that appellants are on bail. They shall be released from the liability of their bail bonds.