Bhuneshwar Hazam vs State Of Jharkhand

Ananda Sen, J

This Criminal Appeal arises out of the judgment of conviction dated 03.10.2002 and the order of sentence dated 05.10.2002 in Sessions Trial No. 299 of 2001 whereby and whereunder learned 1st Additional Sessions Judge, Hazaribag convicted Bhuneshwar Hazam, Tilak Hazam, Lundru Hazam, Gulab Hazam, Dharamnath Hazam and Khilu Hazam under section 302/34 and 120B of the Indian Penal Code and they were sentenced to imprisonment for life each and Mahnu Hazam and Uday Nath Hazam were convicted for the offence under section 120B of the Indian Penal Code and sentenced to imprisonment for life.

The learned counsel for the appellants submitted that the entire case is based upon the testimony of PW1, PW3 and PW5 but if their evidence is scrutinized properly, the conclusion would be that they are not at all reliable witnesses. Further admittedly there is no eye witness to the occurrence of murder. The body of the victim was found in the brick kiln of Afzal but this Afzal was not examined. As per the evidence of PW3, she overheard a conversation between the accused when they were conspiring to commit murder of the deceased. This conspiracy was hatched in the house of one Arju but surprisingly this Arju is not a witness in this case. PW3 also did not disclose the story of conspiracy to anyone nor even the informant who is the uncle of this witness. The only other material against these appellants is that some of them had earlier assaulted and threatened the deceased as there was some land dispute and cases were pending against them. The statement of PW5 to the effect that they have seen these appellants early in the morning washing their cloths in the pond and was taking bath, is not at all a circumstance to connect these appellants in commission of murder. As per the prosecution case it is one Shobha Devi who had seen the deceased lying in the brick kiln of Afzal but surprisingly Shobha Devi has not been examined as a witness. Further as per the learned counsel, Station Diary Entry was recorded being Station Diary No. 540 of 2000 but the same has not been brought on record which would suggest that the actual first information about the occurrence has been withheld.

The learned counsel for the State submitted that PW1 had stated that she had seen at the dead end of the night at about 1:00 A.M, these appellants assaulting the deceased and kidnapping him in a gunny bag. She immediately narrated the aforesaid fact to her husband PW2. These two witnesses are just the front door neighbor of the informant and they had stated the aforesaid fact before the police also. Further PW3 had stated that she had heard that the conspiracy was hatched to commit murder of the deceased. There was land dispute and previous animosity between the parties. All these circumstances have been proved by the prosecution thus the conviction is absolutely justified.

The prosecution case is based on the fardbeyan of PW6 Rohan Hazam the informant. He stated that the incident had taken place in the early morning of 26.03.2000. He further stated that several relatives after attending marriage ceremony in the house of his cousin brother Baijnath Hazam stayed there so that they can catch Barkakana Tata Passenger in the morning. At 3:30 AM they went to Barkipona Station to catch the train. At about 5:30 AM Shobha Devi daughter-in-law of the informant had gone to attend the nature’s call when someone had told her that Deocharan Hazam is lying in the brick kiln of Afzal. On receiving information the informant along with the family members rushed and found the neck of the deceased chopped of by sharp cutting substance and the deceased was lying dead. He suspected that the cause of the occurrence was land dispute between the agnates. On the basis of fardbeyan of the PW6, FIR was registered being Ramgarh PS Case No. 68 of 2000 under sections 302/34 and 120B of the Indian Penal Code.

After investigation, the Investigating Officer submitted chargesheet against the appellants and on the basis of chargesheet and materials available on record, cognizance was taken and case was committed to the Court of Sessions where charges were framed under sections 302/34 and 120B of the Indian Penal Code and trial proceeded.

To prove the prosecution case, altogether 13 witnesses were examined by the prosecution, who are:-

i. PW1 :-Kamli Devi

ii. PW2 :-Kedar Dhobi

iii. PW3 :-   Kamini Devi

iv. PW4 :-   Mala Devi

v. PW5 :-Naresh Hazam

vi. PW6:-Rohan Hazam

vii. PW7:-   Tirth Nath Hazam

viii.PW8:- Monohar Mahto

ix. PW9:-    Birsa Karmali

x. PW10:-   Dr. Vimal Kumar Verma

xi. PW11:- Baijnath Hazam

xii.PW12:- Ram Kumar Hazam

xiii.PW13:- Nag Narain Pandey

Following documents have been exhibited :

i. Ext.1&1/1  – Signature on fardbeyan

ii. Ext.1/2–  Signature on seizure list

iii. Ext.1/3 –  Signature on postmortem report

iv. Ext.2 – Postmortem Report

v. Ext.3 – Fardbeyan

vi. Ext. 3/1 – Numbering on Fardbeyan

vii. Ext. 4 – FIR

viii. Ext. 5 – Inquest Report

ix. Ext. 6 & 6/1 – Seizure list

x. Ext. 7 to 7/6 – copy of the ordersheets.

xi. Ext.8 – Khatian

After  conclusion  of  trial  the  appellants  were  convicted under sections 302/34 and 120B of the Indian Penal Code by the Trial Court. Hence this appeal.

After going through the entire evidence and the material on record, I find that there is no eye witness to the occurrence of murder. The informant is also not an eye witness. He received information that the dead body of the deceased was lying in the brick kiln of Afzal. Thereafter the body was recovered.

The doctor, PW10 who has conducted the postmortem on the dead body of the deceased found the following injuries:-

Incised wound on upper part of neck 5” x 4” x cervical vertebral deep with trachea incised cut at level of hyoid bone. Oesophagous incised cut, all vessels and nerves of front of neck muscle of front of neck cut. Muscle with skin of back of neck is intact. Dried blood smear present in face, neck, clothes (ganji) stained with dried blood. Both lungs intact and pale. Heart – both chamber empty. Liver – spleen and kidneys – all intact and pale. Stomach – wall normal contained mucofluid about 4 ounce. Bladder empty, Rigormortis present in all four limbs.

In the opinion of doctor cause of death was shock and hemorrhage due to injury cause on neck by sharp cutting weapon such as Bhujali. From the evidence of the doctor and the postmortem report which is Exhibit-2, it is clear that the death is homicidal and is murder.

Now the question arises as to whether the prosecution has been able to prove the guilt of these appellants beyond all reasonable doubt or not. Since there is no eye witness of murder, the entire case is based on circumstantial evidence. The circumstances are (i) previous animosity (ii) land dispute and pendency of cases (iii) appellants assaulting the deceased and kidnapping him in a gunny bag at night (iv) appellants conspiring to commit murder of the deceased (v) appellants in the early morning at about 4:00 AM washing their cloths and taking bath in the pond. Through these circumstances the prosecution tried to establish the case against the appellants.

Now let us analyze the evidence and see whether the prosecution has been able to prove all the circumstances beyond all reasonable doubt or not. First let me deal with evidence of PW1. PW1 is the neighbor of the deceased. She stated that at about 1:00 A.M she woke up and went to ease herself when she had seen six of the appellants, namely, Gulab, Bhuneshwar, Khilu, Lundru, Tilak and Dharamnath assaulting the deceased and kidnapping him in a gunny back. She immediately rushed to her house and narrated the aforesaid incident to PW2 who is her husband. PW2 stated that his wife had gone to ease herself at night and when she returned she narrated the aforesaid fact to him. From simple reading of the evidence, one will understand that she had seen these appellants kidnaping the deceased. Now, I have to see whether PW1 is a reliable witness or not and whether she had actually seen the occurrence or is exaggerating. From the materials, I find that the fact that this witness had seen the aforesaid part of the occurrence was disclosed by this witness after a gap of one month and 10 days. The investigating officer had recorded her statement, under section 161 Cr.PC after more than a month. In her statement, PW1 stated that she was so terrified that in the very next morning she left with her husband to Bokaro, thus she immediately could not narrate the fact to the investigating officer. This statement is contradicted by PW8 Manohar Mahto. PW8 Manohar Mahto had stated that this PW1 and her husband PW2 were present in the village at the time of preparation of the seizure list. The seizure list was prepared immediately after the dead body was found. In the fardbeyan only suspicion has been casted upon these appellants. There is no whisper of the incident which PW1 had seen at the dead end of night i.e. the incident of kidnaping the deceased in a gunny bag. If PW1 had actually seen the aforesaid incident had if the same really occurred, then what prevented her to narrate the same to the informant is not known. Her statement that she immediately left for Bokaro with her husband in the next day morning is falsified from the statement of PW8. Thus, I am of the opinion that PW1 had created the story of kidnapping of the deceased by these appellants. She is not a reliable witness. Once I come to the conclusion that PW1 is not a reliable and she has cooked up the incident of kidnapping, then the statement of PW2 on that point is also demolished as he had got the aforesaid information from PW1. There is no other witness to support the aforesaid incident. Thus, I am of the opinion that the prosecution has not been able to prove the fact of kidnapping of the deceased. Thus one of the circumstances as put forth by the prosecution has not been proved nor established.

The next material is the conspiracy theory. PW3, who is none but the sister of the deceased, had stated that while she was returning from the nature’s call and was passing near the house of one Arju, she had seen these appellants gathered in the house of Arju and heard that they were conspiring that they will commit murder of the deceased. At that point of time they were also eating in the house of Arju. I also do not believe her statement to be true because if a person is going to her house by the road, it is impossible to hear what the inmates or the person present in the house will talk about. Further, there is no corroboration of the statement of PW3 on this point. Arju would have been the best witness in this case to support the aforesaid fact, but Arju had not been examined in this case as a witness. Thus PW3 had tried to become a chance witness but no reliance can be placed on her testimony in absence of any corroborating evidence. It is also surprising that if PW3 had heard the aforesaid conversation and was knowing about the conspiracy, then what prevented her to disclose the same to the deceased or her family members is not known. She admitted that she has not narrated this fact to anyone. This behavior of this witness also creates a doubt about her credence. Thus PW3 is also not a reliable witness on this point.

It is the prosecution case that PW5 had seen these appellants early in the morning at 4:00 AM washing their hands and cloths and were taking bath in the pond. This is not at all a circumstance to implicate these appellants.

The other circumstance is the dispute between the families and pendency of cases. Though the pendency of the cases had been established but the dispute and the grudge was tried to be proved through the evidence of PW4 who is the wife of the deceased. She stated that these appellants had earlier assaulted the deceased for which cases were also lodged. But this simple statement is not enough to convict these appellants under section 302 of the Indian Penal Code.

The dead body of the deceased was found in the brick kiln of Afzal. This Afzal had also not been produced as a witness. The dead body was discovered by Shobha Devi at 5:30 AM in the morning but said Shobha Devi has also not been produced as a witness. As per PW1, whom I disbelieved, the deceased was kidnapped in a gunny bag. If the deceased was at all kidnapped and was taken to the place where he was murdered, the gunny bag would have been found there but the police did not find any gunny bag at the place of occurrence. This fact also goes against the prosecution and against PW1.

From the discussions made above, I come to the conclusion that the prosecution has not been able to prove the chain of circumstances beyond all reasonable doubt. When in a case based on circumstantial evidence, the chain is not complete nor any chain could be proved by cogent evidence in that event conviction cannot be sustained. Benefit of doubt must go in favour of the accused/ the appellants.

Considering what has been held above, I am inclined to allow this Criminal Appeal. Accordingly, this Criminal Appeal is allowed and the appellants are acquitted by giving benefit of doubt.

The conviction of the above named appellants under Sections 302/34 and 120B of the Indian Penal Code vide judgment of conviction dated 03.10.2002 passed by learned 1st Additional Sessions Judge, Hazaribag in Sessions Trial No. 299 of 2001, is hereby set aside and, accordingly, the sentence awarded by the learned Trial Court vide order of sentence dated 05.10.2002 is also set aside.

The appellants are on bail. They are discharged of the liabilities of the bail bonds so are the bailors.

Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith.