Bholanath Bauri vs The State of West Bengal

Indira Banerjee, J.—1. This appeal is against a judgment and order dated 30th March, 2005 and an order of sentence dated 31st March, 2005 whereby the accused appellant, Bholanath Bauri alias Sadhu has been found guilty and convicted of the offence of murder of Jiten Bauri under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life in addition to fine of Rs. 2,000/-, in default whereof he is to suffer further rigorous imprisonment for 6 months.

One Chunilal Bauri, son of Late Kalipada Bauri, hereinafter referred to as the de facto complainant, lodged a First Information Report at the Kashipur Police Station, alleging that the accused appellant, Bholanath Bauri came in front of the verandah of his house and accused his elder brother, Jiten and Sadhan of having stolen a bulb.

When his elder brother, Jiten protested, a quarrel broke out with the accused appellant. The accused appellant held Jiten by his hair and dealt blows one after another on his left shoulder with a ''bhojali'' (dagger).

According to the de-facto complainant he started shouting and went to save his elder brother, whereupon the accused appellant left his elder brother and ran away towards his house with the ''bhojali'' (dagger).

The de facto complainant stated that his elder brother, Jiten, fell down with bleeding injuries. On hearing the de facto complainant shouting many people gathered. Balaram Bauri requested some people to call an ambulance after which the de-facto complainant Chunilal Bauri, his younger brother Dayaram Bauri, Balaram Bauri and Kishan Bauri took Jiten to the Rail hospital, where Jiten was declared dead.

Pursuant to the First Investigation Report, investigation commenced and after investigation was completed, a charge sheet was issued, charging the accused appellant, Bholanath Bauri of committing murder of Jiten Bauri with the help of a ''bhojali'' and thereby committing offence under Section 302 of the Indian Penal Code. The charge was read over and explained to the accused appellant, who pleaded "not guilty" and claimed to be tried.

The prosecution examined 14 witnesses. The accused appellant did not adduce any oral evidence in his defence. The accused appellant was, however, examined under Section 313 of the Criminal Procedure Code. He denied the allegations against him and pleaded not guilty.

Of the 14 witnesses who deposed on behalf of the prosecution, only one witness, that is, the 1st Prosecution Witness, Chunilal Bouri, brother of the deceased and de facto complainant claimed that he had witnessed the murder.

The de facto complainant, Chunilal Bouri, brother of the deceased, Jiten, gave evidence in the Sessions Court as the 1st Prosecution Witness. He deposed that the accused appellant, Bholanath had killed his brother, Jiten by inflicting injuries with a ''bhojali'', that is dagger. He claimed to have witnessed the incident which had taken place on 13th April, 2004 at about 12.30 a.m. at night. According to the PW 1, he had lodged an FIR with the Inspector-in-Charge, Adra. He identified the written complainant filed by him.

This witness identified the accused appellant who was present in Court and deposed that the occurrence had taken place in the ''Kuli'' in front of his house, near the electric pole. He stated that he along with his younger brother, Dayamoy Bauri, Kishan Bauri and Balaram Bauri took his injured elder brother Jiten to the Rail hospital at Adra, where the doctors declared him dead. None of those three persons were examined by the Investigating Officer, as will be evident from the evidence of the Investigating Officer. Nor were they examined in Court.

PW 1 deposed that the police came to the village for enquiry. He claimed that he had shown the police, the place of occurrence. The police seized inter alia blood stained soil from the place of occurrence, under a seizure list. This deponent also stated that an inquest was held after which the body of Jiten was sent for post mortem.

The Prosecution Witness No. 2, Chabi Bauri, mother of Jiten and the de-facto complainant, Chunilal, deposed that Bholanath had killed her son, Jiten. She stated that she had not personally seen who had inflicted the injury on Jiten, but her son, Chunilal, had informed her that Bholanath had killed Jiten. She stated that she came out and saw her son Jiten bleeding. She became unconscious. She identified Bholanath who was present in Court. In cross-examination, this witness stated that there was an inner verandah in their house. There was a main door ''sadar darja''. The main door remained closed at night. She was lying in her bed but was not asleep. When she came out, she saw many villagers had assembled near the place of occurrence. Ladies had also gathered. On seeing the injury, she fell unconscious. She later regained her sense. She could not recollect whether her son, Chunilal was present near her when she regained her sense. She denied that Chunilal had not told her about the incident. She denied that she was suppressing the truth.

The Prosecution Witness No. 3, Sadhan Bauri deposed that the incident took place on 12th April, 2004 at midnight. PW 3 along with the deceased Jiten and his friends, Ranjit Bauri and Rana Mukherjee had been to the Shiva ''Gajan Mela'' (fair). From the fair they returned and had dinner together at Jiten''s house, after which they all went to Bahar Bandh to attend to nature''s call. Thereafter, they returned to Jiten''s house and were all chatting, when the accused appellant Bholanath came to Jiten''s house and started abusing Jiten, on the allegation that he had stolen a bulb.

The Prosecution Witness No. 4, Smt. Tara Bouri, said that the incident had taken place on the occasion of Charakpuja at around midnight. She said that she came out from her house on hearing cries, and saw Jiten lying injured in a pool of blood, under the electric pole, in the ''kuli'' in front of her house. She said that Chunilal had told her that Bholanath had inflicted injuries on his brother and run away.

The Prosecution Witness No. 5, Sri Anil Bouri, deposed that Chunilal had told him that the accused appellant had inflicted injuries on Jiten and run way. He stated that on hearing Chunilal cry out, he went to the place of occurrence and saw Jiten lying in a pool of blood. Jiten was taken to the Railway Hospital Adra.

The Prosecution Witness No. 6, Srihari Bouri, stated that Jiten had differences with the accused appellant on the day of Chaitra Mela. This witness claimed that he was also in the Chaitra Mela. When he returned to his locality, he heard that Bholanath had assaulted and injured Jiten. He went to the place of occurrence and saw blood at the spot. He said that a photographer had taken photographs at the place of occurrence. In cross-examination, this witness said that Bholanath was supervising the Shiv Gajan Mela and Shibaram Goswami was the priest of the Shiv Gajan Mandir. Religious performance went on throughout the night until upto 4 am in the morning. He stated that he did not come to the place of occurrence after hearing the news of Jiten''s murder.

The Prosecution Witness No. 7, Saru Bouri, deposed that he had heard that Jiten had been murdered by Bholanath Bauri who had fled away after killing Jiten. His evidence is based on hearsay.

The Prosecution Witness No. 8, Ranjit Bouri, said that Jiten had been murdered on the day of Chaitra Gajan. He said that he had visited Jiten''s house. He said that he along with Jiten, Rana and Sadhan visited the Gajan Mela and returned to Jiten''s house at about 11:45 p.m. He said he had come to Jiten''s house on Jiten''s invitation. He said that after having dinner at Jiten''s house, they went to the pond to attend nature''s call. Then they again returned to Jiten''s house and were chatting. This witness said that he had heard heated arguments between Bholanath and Jiten regarding the theft of an electric bulb.

The Prosecution Witness No. 9, Aminur Rahaman, was the photographer who had visited the railway hospital to take photographs of the dead body. He identified three photographs of the deceased clicked by him.

The Prosecution Witness No. 11, Dr. A.K. Dasdan, is the Medical Officer of Sadar Hospital Purulia, who had conducted the post mortem examination of the dead body of Jiten. He opined that it was possible that the injury may have been caused by the blow of a ''bhojali''.

The Prosecution Witness No. 10, Rana Mukherjee, deposed that he had gone to Beko village to the house of Jiten Bauri on a dinner invitation. After dinner, they went to the pond. After a while they returned to Jiten''s house and were gossiping when one person came and accused Jiten of committing theft of an electric bulb.

The Prosecution Witness No. 12, Shib Ram Goswami, the priest at the Shiva Temple who was performing the religious rights at the ''Gajan Mela'' deposed that the accused appellant had been in charge of supervision of the ''mela'' functions and had also been assisting this witness with religious rituals. This witness said that the accused appellant had left the fair ground, to have his dinner in between 8:30 and 9:30 and had again left the fair ground at 11:30 p.m.

The Prosecution Witness Nos. 13 and 14 are Police witnesses. From the evidence of the Prosecution Witness No. 14 being the Investigating Officer, it is patently clear that there was no other eye witness. No other eye witness was examined, except Chunilal.

It is not in dispute that the murder took place at midnight when it was dark. The murder, according to the de facto complainant took place at the ''kuli'' in front of his house, near the electric pole. There is no evidence of any source of light at the place of occurrence. Nobody has stated that there was any lamp post near the place of occurrence.

In his evidence-in-chief, Chunilal (PW 1) had said that he witnessed the incident. His mother being the 2nd Prosecution Witness, deposed that the entrance door (sadar darja) was kept bolted at night. There is not a whisper in Chunilal''s evidence of why he went out of his house at midnight, after opening the door.

In his cross-examination, PW 1 stated that at the time of the incident he was in the ''kuli'' gossiping with Sreenibas Bouri in front of the house of Kishan Bauri''s house located to the north of the ''Horibole'' Temple. If the de facto complainant were gossiping with Sreenibas Bouri on the ''Kuli'' then Sreenibas Bauri should also have been an eyewitness. In his evidence-in-chief the de facto complainant did not mention any other eyewitness to the incident. Furthermore, Sreenibas Bouri did not give evidence in Court. He does not appear to have been examined by the Investigating Officer either. In his cross-examination the Investigating Officer (PW 14) stated "I did not examine Sreenibas Bouri as he was not available. I did not issue notice to Chunilal Bouri for producing Sreenibas Bouri. I did not examine witnesses Balaram Bauri, Dayaram Bauri and Kishan Bauri".

The evidence of the 3rd Prosecution Witness, Sadhan Bauri is significant. He stated that on 12th April, 2004 at midnight he along with Jiten, that is the deceased, and his friends Ranjit Bauri and Rana Mukherjee had been to the Shiva Mela (fair). From the Shiva Mela they returned and had dinner together at Jiten''s house, after which they all went to Bahar Bandh to attend to nature''s call. After that they again returned to Jiten''s house and were gossiping. Bholanath Bauri came to Jiten''s house and started accusing Jiten and Sadhan of taking an electric bulb from the Hari Mela. He said that the accused appellant had also started abusing them. He said that Bholanath Bauri asked Jiten to come out. Jiten went out. Both Jiten and Bholanath (accused appellant) were going towards the Hari Mela. All of a sudden he heard Chunilal scream. When he came out, he saw Jiten bleeding with injury on his neck. Chunilal informed him that Bholanath had assaulted Jiten and inflicted the injury on him. There seems to be some discrepancies in the evidence of PW 3. In the complaint Chunilal stated that the accused appellant accused Jiten and Sadhan of stealing the bulb, from the front of Jiten''s verandah. However, from the tenor of the evidence of this witness it appears that the accused appellant Bholanath came in and then Jiten went out with him.

Furthermore, this witness stated that the accused appellant accused Jiten and this witness of stealing a bulb. All along Jiten, this witness, Ranjit Bauri and Rana Mukherjee had been together. They even went to the pond together to answer nature''s call. However, when Bholanath called Jiten out, no one went with him, even though there had been heated verbal altercations between Bholanath and Jiten, and Bholanath also accused PW 3 of theft of the bulb. This witness said Bholanath called Jiten out and they started going towards the bedi of the Hori Mandir. All of a sudden PW 3 heard Chunilal screaming. He went out and he saw Jiten lying under the pole with injuries on his neck.

Ranjit Bauri deposed as Prosecution Witness No. 8. He corroborated that he had gone to Jiten''s house on his invitation along with Rana Mukherjee and Sadhan Bauri. He stated that after visiting the ''Gajan Mela'' they returned to Jiten''s house at about 11:45 p.m. at midnight. They had dinner and thereafter went to the pond to attend to nature''s call. Thereafter they again returned to Jiten''s house and were chatting. This witness claimed that he fell asleep. All of a sudden Jiten came and he woke up.

It is not explained where Jiten came from. It seems that they all visited the pond and then came back altogether and after a while this witness fell asleep. He stated that he heard an altercation between Bholanath over the issue of theft of electric bulb. During the altercation Jiten went out of his house. After a while he heard Chunilal''s brother cry out that the accused appellant had killed Jiten. This deponent did not say anything about the accused appellant making allegations against Sadhan. This witness stated that seeing the scene, he was stricken with fear. In cross-examination this witness stated that he was stricken with fear when he saw Jiten bleeding with injuries. They had spent the rest of the night in Jiten''s uncle''s house and on the next day, he along with his friend Rana left by train.

It seems somewhat unnatural that Ranjit and Rana who along with Sadhan had been invited for dinner at Jiten''s house and were actually spending the night at Jiten''s house should have just gone away to Jiten''s uncle house instead of accompanying Jiten to hospital along with Chunilal Bauri, his younger brother Dayaram Bauri, Balaram Bauri and Kishan Bauri.

Rana Mukherjee who deposed as 10th Prosecution Witness also corroborated that he had been to the village on the last day of Chaitra. He had dinner in Jiten''s house on Jiten''s invitation after going to the Shiva Temple about 10/10:30 at night. After dinner they went to the pond to attend nature''s call, after which they returned to Jiten''s house and they were gossiping there. This deponent stated that a person came to Jiten''s house and started accusing Jiten of stealing an electric bulb. Being provoked Jiten went out along with him. Thereafter he heard Jiten''s brother cry out "mere dilo mere dilo". He said that after hearing this, he along with Ranjit, and another friend of Jiten, Sadhan, went out and saw Jiten lying near the electric pole, bleeding. He came to know from Jiten''s brother that one Sadhu had killed Jiten. This witness could not identify the person who had accused Jiten of theft.

The Prosecution Witness No. 4, Smt. Tara Bouri, the Prosecution Witness No. 5 Sri Anil Bouri, uncle of the de facto complainant and the deceased and the Prosecution Witness No. 7, Saru Bouri did not witness the incident. They came to the scene after the incident had taken place. They stated that they had heard that Jiten had been killed by the accused appellant.

The 6th Prosecution Witness, Srihari Bouri, stated that he was at the religious performance. When he came back to the locality, he heard from local boys that the accused appellant had killed Jiten. This witness said that Bholanath had been entrusted with the supervision of the ''Gajan Mela''. The Prosecution Witness No. 12, Shibaram Goswami, the priest who performed the religious rites also confirmed that Bholanath was supervising the religious rites on that day. He deposed that the accused appellant was assisting him in performing Puja. He, however, said that the accused appellant had left the Mela for taking his dinner at around 8:30 and had returned at around 9/9:30. He again left the place at about 11/11:30 at night. As per Chunilal''s complaint in writing the incident took place at 12:30 a.m.

The evidence of Shibaram Goswami at best indicates that Bholanath Bauri was not at the fair after 11/11:30. This witness said that the accused appellant Bholanath Bauri was his assistant. The religious performance was going on all night. This witness stated that the accused appellant had left at 8:30 in order to have his meal, and he returned after an hour or so. However, he did not indicate the reason why the accused appellant left at 11/11:30 when the celebrations were night long and he was in-charge of supervision and was assisting the priest. If Bholanath were leaving early, when he had undertaken the responsibility of assisting the priest, he would have told the priest, the reason why he was leaving. There would be some excuse for leaving.

Moreover if Bholanath had left at 11/11:30 p.m. and not returned the rest of the night, his absence would have been noticed by others who were organizing the fair. PW 6, who was at the fair said that Bholanath had been in charge of supervision of the fair. This witness did not corroborate the evidence of the priest that Bholanath had left the fair at 11/11:30 p.m. He did not say that Bholanath was not there at the fair after 11/11:30 p.m.

There is no evidence of any discussion at the fair with regard to the absence of Bholanath, who was in charge of supervision. Considering the vagueness of the uncorroborated evidence of PW 12, it is difficult to accept that Bholanath was missing from the fair.

There is no evidence of any enmity between the accused appellant and Jiten. May be, there had been some altercation between Jiten and the accused appellant over a missing electric bulb. There may also have been difference over performance of Saraswati Puja, though there is no cogent evidence of such difference. However, there seem to be trivial differences - too trivial to culminate in murder.

The possibility that the de facto complainant, Chunilal''s mind may have been clouded by strong suspicion by reason of the close proximity between an argument and the homicidal death of Jiten cannot be ruled out. There is no cogent explanation as to what Chunilal was doing near the electric pole so late at night and his evidence that he was gossiping with Shrinibas Bauri is uncorroborated. There is no evidence of light, by which he could have recognized the assailant.

We are of the view that the conviction of the accused appellant solely on the basis of the flimsy evidence of an interested eyewitness, fraught with improbabilities, cannot be sustained. The possibility of false implication either deliberately or by reason of genuine error, cannot be ruled out.

The learned Sessions Court patently erred in drawing in effect adverse inference against the accused appellant on the basis of the evidence of the priest Shib Ram Goswami (PW 12) that the accused appellant had left the Gajan Mela at around 11.30 p.m., without putting any question with regard to the evidence of PW 12 in Court to the accused appellant in his examination under Section 313 of the Criminal Procedure Code.

In view of inherent improbabilities, the serious omissions and infirmities, the interested nature of the evidence and other circumstances, adverted above to which our attention was drawn by Mr. Acharya, we are of the opinion that the prosecution has failed to prove the case against the accused appellant beyond reasonable doubt. The accused appellant would have to be given the benefit of doubt.

The appeal is allowed.

The conviction of the accused appellant is set aside. The accused appellant may be set free.

Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.

I agree.