Bigna Lohar vs The State and Another

Girish Chandra Gupta, J.—This appeal is directed against a judgment and order dated 21st April, 1990 passed by the learned Additional Sessions Judge, First Court, Jalpaiguri in Sessions Trial No. 15/1989 arising out of Sessions Case No. 2 of 1989 convicting the accused Bigna Lohar u/s 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life as also to pay a fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for a period of two years. Aggrieved by the judgment and order, the convict has come up in appeal.

The facts and circumstances of the case briefly stated are as follows:

On 29th March 1986 which was the day of holi festival, the accused Bigna Lohar called at the house of Suresh and took him away. Suresh thereafter never came back. His dead body on the following day was recovered from the house of the accused Bigna Lohar. The victim was killed by strangulation. There were also signs of severe assault. The learned Trial Judge summarized his conclusion as follows:

The taking away of the victim Suresh Lohar by the accused from the house of the P.W.1 to his own house at Indong Tea Estate then recovery of the dead body in front of the door of his house on the very next day clearly indicate that the alleged murder was in fact caused by him. He has not furnished any convincing explanation as to how the dead body of the victim was brought in front of his door. Secondly, his long absence after the alleged recovery of the dead body has further strengthened the conclusion that he committed murder of the victim Suresh Lohar and tried to evade the arrest till 26.6.86 when he was arrested by the I.O. (P.W.8).

Mr. Dastoor, learned counsel appearing in support of the appeal advanced the following submissions:

The evidence of the P.W.1, father of the deceased Suresh, is inconsistent with the contents of the written complaint lodged with the police contemporaneously. Mr. Dastoor added that in the written complaint except for alleging that the appellant had taken away his son and that the body of his son was found in the house of Bigna Lohar, there is practically no other allegation. Whereas in the evidence given in Court, the P.W.1 has given graphic details as to how was his son killed. Mr. Dastoor, therefore, submitted that the evidence of the P.W.1 cannot be believed.

We are unable to accept this submission. The defacto complainant P.W.1, one should not forget is a worker in a Tea Estate and is also an illiterate person. The written complaint was filed within hours after he discovered the dead body of his son. Whereas the evidence in the Court was given almost five years after the incident. He must have come across stories as to how was his son killed. He was repeating them when he came to give evidence. But the main fabric of the case namely the victim was taken away by the appellant and the body of the victim was found in the house of the appellant remained the same. The defacto complainant has added greater details, the truth whereof was not enquired into during his cross-examination. Those details may not have been corroborated by his written complaint. The main fabric of the case has however been corroborated by the P.W.8 the I.O. who immediately went to the P.O. His evidence in that regard is as follows:

I visited the P.O. at Indong T.E and held the inquest over the dead body of the victim Suresh Lobar which was found in front of the door of Bigna Lohar.

Mr. Dastoor further drew our attention to the fact that in the written complaint the allegation is that on 30th March, 1986 in the noon the defacto complainant heard from the people of Indong who came to Mettalihat that his son had been murdered. Mr. Dastoor submitted that this story has been changed altogether during evidence in the Court by the defacto complainant who deposed that on 30th March, 1986 his nephew Ram Lohar informed him at Mettali Bazar at about 2 p.m. that the appellant had murdered his son Suresh. From the written complaint, it would appear that the information as regards murder of his son was received by the P.W.1 at Mettalihat which he repeated in his evidence given in Court. He has in addition disclosed the name of Ram Lohar, who supplied the information, which was not there in the written complaint. This does not nullify the fact that the information regarding murder of his son was received by the defacto complainant at Mettalihat.

The second submission advanced by Mr. Dastoor was that this '' informant Ram Lohar is conspicuous by his absence from the witness box So is Bandhan Lohar the son of the defacto complainant who allegedly accompanied him to the house of the accused when the dead body was discovered. Mr. Dastoor is correct in his submission that these two persons namely Ram Lobur and Bandhan Lohar were not called to give evidence. Why were they not called is however a question which was never put to the I.O. and therefore, the reason for not calling them is not known to anyone.

The third submission advanced by Mr. Dastoor is that the body of the deceased was lying in the field which was 80 cubits away from the house of the accused as would appear from the evidence of the P.W.2. The P.W.2, in his examination in chief deposed as follows:

I saw his dead body in the field at a distance of about 80 cubits towards north from the house of the accused.

Mr. Dastoor added that the P.W.2 was not declared hostile. Therefore, the evidence of the P.2 has to be taken into consideration. This would nullify the allegation that the dead body of the deceased was found in or near about the house of the appellant.

The value to be attached to the evidence of a witness depends largely upon the satisfaction of the Court that the witness is telling the truth. The learned Trial Judge who had the occasion to watch the demeanor of the P.W.2 did not believe him. The reasons given by the learned Trial Judge are as follows:

So such absurd story advanced by the P.W.2 is not believable at all. There is every likelihood that this witness has made a false statement before this Court to save the accused who is his colleague. He has not only supported the story of alibi advanced by the accused persons but has also tried to falsify the case of the prosecution that the victim was taken by the accused from the house of the P.W.1 at 6/6.30 p.m. on the preceding day of the occurrence i.e. Saturday. He has stated that on previous day which was Saturday, he went to Metalli Bazar and met Suresh there at about 6.30 p.m. and at that time he was alone. He has also claimed to have asked Suresh to return to his house as it was the day of Holi festival and there was chance of mishappening and in reply Suresh told him that he would proceed to his house immediately. He has also added that at that time the mental condition of Suresh Lohar was not good. According to him the victim Suresh Lohar had mental ailment and was also addicted to liquor. Such statement of P.W.2 is clear example of concoction. It is very strange as to how P.W.2 like a foreteller warned the victim Suresh of the impending mishappening which was likely to fall upon him in the immediate future. Such prophecy smacks of doubt and even may lead to his involvement in the conspiracy which might have resulted in the commission of the murder of the victim. Anyhow, this is not the proper stage to throw light on his involvement in the alleged crime. Considering the nature of his evidence it may be safely concluded that his evidence is not.....On being asked by the Court in his cross-examination he has stated that he knew the victim Suresh Lohar since the time of the marriage of the sister of the accused which took place about 40/45 years ago and Suresh was present in that marriage. The doctor P.W.5 who conducted the P.M. examination of the victim has stated that the victim was aged about 29 years. So, the story of P.W.2 of having seen the victim about 45 years ago is not believable at all. On account of this falsehood his entire evidence is liable to be summarily discarded.

Mr. Dastoor has not made any submission as to why the reasons advanced by the learned Trial Judge are not supportable. We are convinced that the P.W.2 was disbelieved for adequate reasons.

The fifth submission advanced by Mr. Dastoor was that the victim was a mental patient. The fateful day was the day of holi festival. The victim may have picked up quarrel and may have been killed by somebody. What Mr. Dastoor has submitted is a possibility. But for that possibility there is no foundation in the evidence nor has the appellant stated any such thing during his examination u/s 313 Cr PC. It is also not true that he was a mental patient. The evidence of P.W.1 in this regard is as follows:

Before the date of incident my son had some mental ailment but it was cured.

Further evidence of the P.W.1 in this regard is that the Deceased was working as a carpenter. He was a skilled labourer which also does not match with the theory that he was a mental patient. We have definite evidence before us to show that he was taken away by appellant. No body would like to have anything to do with a mental patient far less inviting him to his house.

The sixth submission advanced by Mr. Dastoor related to the results of the postmortem examination. The Autopsy Surgeon in his evidence referred to the following injury:

One haemotoma over left infra orgital region � in diameter. Fracture of nasal bone.

One circular continuous ligature mark in the middle of the neck.

According to Mr. Dastoor there is no finding that the hyoid bone was broken. The correctness of the opinion of the doctor was not challenged when he was in the box. We, therefore, do not attach any importance to this submission.

The seventh submission advanced by Mr. Dastoor was that the FIR was sent to the Magistrate on 22nd May, 1986 whereas the incident took place on 30th March, 1986 for which there is no explanation. The Officer-in-Charge of the concerned police station is the P.W.7. The whole of his cross-examination is reproduced hereinbelow:

The aforesaid FIR appears to have been received by SDJM Jalpaiguri on 22.5.86. The FIR is sent to the Court after making relevant entry into the Despatch Register of the P.S. concerned. The FIR is required to be sent to the Court forthwith. It is not a fact that the FIR was prepared subsequent after the date and time mentioned by me in my deposition.

The officer-in-charge was not asked as to the reason for delay in sending the FIR to the concerned Magistrate. Mr. Dastoor submitted that usual procedure is to send the FIR to the concerned Magistrate forthwith But the unusual course was followed by delaying the despatch of FIR for about two months.

We are inclined to think that there is no substance in this submission After the inquest and the postmortem were held, there was no further development in the investigation. The accused was not caught. He was arrested only on 26th June, 1986. The object of sending the FIR to the concerned Magistrate is to keep him informed as to the steps taken by the police in investigating a case. This is one of those cases where investigation did not proceed any further. That could have been a reason why there was delay in despatching the FIR or why the police did not feel any urgency of sending the FIR to the concerned Magistrate.

Mr. Dastoor lastly submitted that the chain of circumstances is not complete nor does the same lead to any irresistible conclusion that the appellant committed the crime. We are unable to accept this submission. Besides the evidence already discussed we also have before us a false plea of alibi taken by the appellant during his examination u/s 313 Cr PC. No submission as regards the falsehood found by the learned Trial Judge was advanced by Mr. Dastoor. A false answer offered by the accused during his examination u/s 313 Cr PC can also be counted as providing a missing link for completing the chain (see: State of Maharashtra Vs. Suresh, ). We are inclined to think that the charge has been proved beyond any reasonable doubt. The facts and circumstances proved in this case are only consistent with the guilt of the appellant. Reference may also be made to the decision in the case of State of West Bengal Vs. Mir Mohammad Omar and Others etc., wherein Their Lordships opined as follows:

When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.

For the reasons indicated above, the appeal fails and is dismissed. The impugned judgment and order of conviction and sentences passed by the learned Trial Court are affirmed.

The appellant was enlarged on bail by an order dated 31st October, 1990. He is directed to surrender forthwith before the Court of learned Trial Judge to serve out the sentence passed by the learned Trial Court.

Lower Court Records with a copy of this judgment to go down forthwith to the concerned learned Trial Court for information and necessary action.

Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned counsel for the parties upon compliance of all formalities.

Kishore Kumar Prasad, J.

I agree.