Etwa Bhuiyan vs State Of Jharkhand

Ananda Sen, J

Appellants have preferred this appeal against the judgment of conviction and order of sentence dated 31st January, 2003 passed by the District & Sessions Judge, Latehar in Sessions Trial No.280 of 2001 arising out of Chandwa Police Station Case No.21 of 2001 (G.R. No. 128 of 2001), whereby and whereunder, the appellants have been convicted for offences under Sections 364, 302, 201/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life for offence under Sections 302, 364 of the Indian Penal Code; rigorous imprisonment for five years for offence under Sections 201/34 of the Indian Penal Code.

Learned counsel appearing for the appellants submitted that the informant and P.W.2 cannot be said to be the eye witness. There are discrepancies and contradictions in their statement. The main accused Maksudan Bhuiyan has not been tried in this case. None of the weapons were recovered. He further argued that the occurrence had taken place in the village, but none of the villagers had been examined in this case, which suggests that the appellants have been falsely implicated in this case.

Learned counsel for the State submitted that P.W.1 and P.W.2 are eye witnesses. They had seen these appellants forcibly taking the deceased along with them during night hours at about 01.00 a.m. P.W.1 and P.W.2 followed them to some distance, but, after some time, to save their lives, they returned. Body was recovered on the very next morning. Considering the proximity of the appellants having been last seen with the deceased and recovery of the dead body, it is clear that only these appellants had abducted the deceased and committed his murder.

The prosecution case is based on the fardbeyan of the informant Dondala Bhuiyan recorded by SI Satish Singh, the Officer-in-Charge of Chandwa Police Station, on 09.04.2001, at 3:55 P.M at the place of occurrence in Village- Chetar, wherein it has been alleged that on 08.04.2001 at about 08.00 - 8:30 PM he was sleeping. His elder brother, Tokan Bhuiya was sleeping at Dhaba (Verandah) inside the house, which was locked from inside. He stated that at about 09.00 P.M., Maksudan Singh, Manua Bhuiya, Etwa Bhuiya of their village and one unknown person came and were knocking at his door. Maksudan Singh and Manua Bhuiya were calling his name while knocking the door. His brother, who was sleeping inside near the door, opened the door, whereafter all those four persons caught hold of him. Maksudan Singh, with the muffler in his hand, tied the hands of his brother on his back. They were armed with dagger, farsa and lathi and they forcibly took his brother with them. He tried to chase them and raise alarm but he was shut up by the wife of Etwa Bhuiya saying that party people have come. Out of fear, he returned to his home. He has further stated that on the next morning he started searching for his brother and in course of search, when he went towards Railway Bridge from railway line end, on the eastern side of Chetar River and on the northern side of railway line near the railway bridge, he saw the body of his brother was lying and his hands were tied in his back. He stated that from seeing the dead body, it appeared that the deceased has been killed by tying him, assaulting on his neck with a dagger and by beating with stone and the face was smashed. He stated the reason for which his brother was killed is not known to him. His brother had no enmity with anyone nor they have any dispute in the village. He claimed that Maksudan Singh, Manua Bhuian, Etwa Bhuian and one unknown person forcibly took his brother with them and have killed by assaulting him with lathi, chaku, balua etc. and in order to disappear the evidence, they had concealed the dead body in the bushes.

On the basis of the aforesaid fardbeyan, Chandwa Police Station Case No. 21 of 2001 was registered under Sections 323/ 302/ 341/ 201/ 34 of the Indian Penal Code. Police, after investigation, submitted chargesheet No.48 of 2001 dated 08.07.2001 as against the appellants for offences under Sections 364/302/201/34 of the Indian Penal Code. The Court took cognizance of the offence and the case was committed to the Court of Sessions. Charges were framed on 14th day of February, 2002 with three heads for offences under Sections 364, 302/34 and 201/34 of the Indian Penal Code. Charges were read over and explained to the appellants to which they pleaded not guilty and claimed to be tried.

There are only four witnesses in this case, namely, P.W.1 Dondla Bhuiyan (informant), P.W.2 Somari Devi (wife of the informant), P.W.3 Dr. Ashok Kumar Das, who had conducted the postmortem on the dead body of the deceased and P.W.4 Ganpat Yadav, who was the investigating officer.

The prosecution also produced following documents to substantiate its case, which were marked exhibits:-

Exhibit 1

Postmortem Report

Exhibit 2

Fardbayan

Exhibit 3

Inquest Report (Carbon Copy)

After closure of prosecution evidence, the statements of the appellants were recorded under Section 313 Cr.P.C wherein they denied the charges. No evidence has been adduced by them in their defence.

The Trial Court, after hearing the arguments and appreciating the evidences on record, by the judgment of conviction and order of sentence dated 31st January, 2003 passed in Sessions Trial No. 280 of 2001, has convicted and sentenced the appellants for offences under Sections 302, 364 and 201/34 of the Indian Penal Code.

P.W.3 is Dr. A.K. Das, who had conducted postmortem examination on the dead body of the deceased. He had found the following anti mortem injuries:-

(i) Incised cut wound over left lateral side of neck ½ x ½” deep in the deeper structure cutting skin, muscles, great vessels of neck and oesophagus and trachea.

(ii) Multiple linear bruise, echymosis over left side of chest causing laceration of lungs, liver with blood in thoracic cavity.

He has opined that the cause of death was shock and hemorrhage due to injuries over neck by sharp cutting weapon.

The postmortem report was marked Exhibit 1.

From his evidence, it is clear that the deceased died homicidal death and was murdered.

P.W.1 is the informant in this case, who stated that at night, these two appellants, one Maksudan and another person came and called the informant, when his brother opened the door. The accused caught him, tied his hands and took his brother. All the accused were armed with dagger, farsa and lathi. He kept himself concealed. In the next morning when he went in search of his brother, he found his dead body. He stated that there was no enmity with any person. He went to the police station. At the time of deposing these two appellants were in Court and he identified them. He stated in his cross-examination that he had seen these appellants and when he concealed himself in the room, his wife was going behind them, but she returned after some distance. Alarm was raised, when the villagers came, but the brother was not found. As per him, accused are residents of same village.

P.W.2 stated that at night, there was a nock in the door when her elder brother-in-law came out. These appellants and Maksudan and one unknown person tied his hands and they forcibly taken him. They were armed with pistol, farsa, lathi. This witness went behind them till some distance but she returned as they started assaulting her elder brother-in-law. She raised alarm upon which villagers gathered at night, but they could not find the abducted person. On the next morning, the dead body was found near the Railway Bridge. She also identified the accused persons in the Court. She, in her cross-examination, stated that her brother-in-law, who was being taken by the appellants and others, those persons told her to return when she was following them.

From the evidence of these two witnesses, i.e., P.W.1 and P.W.2, it is clear that they had seen the occurrence. Appellants had come to the house of these witnesses, knocked the door. The deceased opened the door, when he was caught by those persons. They tied his hand and forcibly took him with them. There was consistent evidence to prove these facts. Though there is no direct eye witness to the occurrence of murder, but P.W.2 has stated that when the deceased was being taken, to some distance she had followed them, but she returned as they started assaulting the deceased. P.W.1 has also stated that these appellants had taken the deceased along with them. Though he stated that he had concealed himself in a room, but he has also stated that the appellants and others had tied the hands of the deceased and deceased was forcibly taken by them.

Thus, from their evidence the fact that the deceased, after tying his hands, was abducted by the appellants and others, has been proved. Further the fact that the deceased was last seen in the company of these appellants is also proved. This incident occurred at night. On the next morning the dead body was found. The proximity of the time of the appellants last seen with the deceased and the recovery of the dead body is not much. Since the incident had occurred at night, there could not have been any other person to come in between, which can force us to come to a conclusion that these appellants had let go the deceased and someone else had committed the murder. The entire circumstances clearly suggest that it is these appellants, who had committed murder as they were armed with weapons and had taken the deceased with them forcibly and after some distance they also started assaulting the deceased. These circumstances are enough to conclude that these appellants had abducted and committed murder of the deceased.

Further, the P.W.4, who is the Investigating Officer of this case, has stated that he had inspected the place of occurrence, which is house of this informant. The dead body was found 500 yards east from the house near the Railway Bridge. The distance also suggests that it is none, but the appellants, who had committed the crime.

Considering what has been held above, we find no merit in this appeal as the Trial Court has considered all the aspects, relevant materials and evidence on record before convicting the appellants and awarding them the sentence.

This criminal appeal is, accordingly, dismissed. The judgment of conviction and order of sentence dated 31st January, 2003 passed by the District & Sessions Judge, Latehar in Sessions Trial No.280 of 2001 arising out of Chandwa Police Station Case No.21 of 2001 (G.R. No. 128 of 2001) is sustained. Since the appellants are on bail, they are directed to surrender before the Court below forthwith to serve the remaining part of the sentence.

Pending interlocutory applications, if any, stand disposed of.

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