Lakhan Bhuian and another vs State of Jharkhand

D.N. Upadhyay and Ratnaker Bhengra, JJ.—This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 19.06.2007 and 25.06.2007 respectively, passed by learned Additional Sessions Judge, F.T.C.-V, Garhwa, in connection with S.T. Case No. 113/04, corresponding to G.R. No.746/01, arising out of Ranka P.S. Case No. 81/01, whereby both the appellants have been held guilty for the offence punishable under Sections 147,148,302,149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence under Sections 302/149 of the Indian Penal Code and to pay a fine of Rs.5,000/- each, in default of making payment of fine, further rigorous imprisonment for three months. The appellants have been further inflicted sentence of rigorous imprisonment for six months for the offence under Section 147 of the Indian Penal Code and rigorous imprisonment for one year for the offence under Section 148 of the Indian Penal Code. The sentences so passed were directed to run concurrently.

The facts, emerging from fardbeyan of Lallan Ram, recorded on 27.10.2001, at 6:30 a.m., are that on 26.10.2001, at about 8:00-9:00 p.m., parents of the informant were talking with each other and they were discussing as to why Bidai of their daughter-in-law was not given by her parents. The subject of the discussion was that some villagers might have misled the daughter-in-law and that might be reason, her parents did not allow her to go to her in-laws house. The discussion so going on was heard by daughter of the accused Birjhan Bhuian and she informed her parents and said that informant''s family are criticising them. It is alleged that the appellants and their associates, who were named in the FIR, armed with deadly weapon like garasha, kulhari, lathi etc., reached to the house of the informant and challenged them to come out of the house. No sooner the informant came out of the house, all the accused persons made an attack to cause assault but somehow the informant escaped from their clutches and saved himself. Thereafter, Mulhar Bhuian and Saltoo Bhuian came out of the house to know the situation but they were subjected to assault by the appellants and their associates. It is specifically alleged that appellant Lakhan Bhuian gave garasha blow on the neck of Mulhar, as a result, he sustained injuries and died on the spot. Saltoo was assaulted by appellant Churagu by means of Tangi and he sustained injuries on his face, neck and other parts of the body. Companion accused also caused assault by lathi. Before the villagers attracted towards the occurrence after hulla, appellants and their associates fled away. Saltoo died in course of his removal to the hospital. On the basis of fardbeyan of Lallan Ram, Ranka P.S. Case No. 81/01 dated 27.10.2001 under Sections 147,148, 149, 302 of the Indian Penal Code against seven named accused persons, including the appellants was instituted.

The investigation was carried out, charge-sheet was submitted and accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as S.T. Case No. 113/04.

Appellants with their associates, namely, Birjhan Bhuian and Ramesh Bhuian were charged for the offence punishable under Sections 147,148,302, 149 of the Indian Penal Code. During trial, case of Ramesh Bhuian was split up because he was found juvenile.

To substantiate the charge, prosecution has examined altogether six witnesses, including the informant and Doctor, who had conducted autopsy on the dead body of the deceased. The appellants have also examined two witnesses in their defence. Learned trial Judge placing reliance on evidences and documents available on records, held the appellants guilty and inflicted sentence, as indicated above, but, accused Birjhan Bhuian has been acquitted from all charges.

Learned counsel appearing for the appellants has assailed the impugned judgment on the ground that IO has not been examined, no independent witness has come forward to support the prosecution case, the place of occurrence has not been proved and contradictions are appearing in the statement of eye witnesses and their testimony is not reliable one.

According to the contention made by the informant in the fardbeyan, when he came out of the house, the appellants and their associates made an attempt to cause assault, but, somehow he escaped and fled away. If the version of informant is correct, he was not present at the place of occurrence and he had not witnessed the assault caused to the deceased. Jitani Devi, PW-1, is wife of the deceased Saltoo, whereas, Ramkali Bhuian, PW-3 is wife of the deceased Mulhar. Rajendra Bhuian, PW-2, happens to be son of the deceased Mulhar. They have not given consistent statement as to who came out from the house first. Someone has stated that Saltoo came out of the house and subjected to assault by the appellants, whereas informant says Mulhar came out of the house and he was targeted by the appellant Lakhan Bhuian. PW-1 has given exaggerated version of occurrence and gone to the extent of saying that after causing assault to Saltoo, accused persons climbed on his body and pressed. Evidence of Rajendra Bhuian, PW-2, is somehow different from the statement of PW-1, PW-3 and PW-5. He says, when Saltoo came out of the house, accused persons including the appellants caused assault to him. So there appear contradictions regarding manner of occurrence in the deposition of so-called eye witnesses and that cannot be relied upon.

Learned counsel has further raised a point that occurrence took place between 8:00-9:00 p.m. and no source of light was available. If the statement of the witnesses is admitted, earthen lamp was the only source of light, in which, witnesses have claimed to identify the appellants and other accused persons, who were named by them. If, altogether seven accused had participated in causing injury to the deceased and family members of the informant, it was not possible for them to identify accused persons and describe the overt act committed by each of them in the light of earthen lamp. Due to non-examination of I.O., place of occurrence has not properly been explained. PW-1, PW-2, PW-3 and PW-5 are members of the same family and related to the deceased and they are highly interested witnesses. It is disclosed in the fardbeyan that the villagers assembled at the place of occurrence after hulla but none of them has come forward to support the prosecution case that any such incident, at that point of time, at that place had taken place. Learned Trial Judge has wrongly held the appellants guilty under Section 302 with the aid of Section 149 of the Indian Penal Code. No other accused except these appellants have been held guilty. Finding of the Trial Judge is highly erroneous because the appellants could not be held guilty for both the offences i.e. under Section 147 of the Indian Penal Code and under Section 148 of the Indian Penal Code. They shall be held guilty either under Section 147 of the Indian Penal Code or under Section 148 of the Indian Penal Code.

Learned A.P.P. has opposed the argument and submitted that place of occurrence is house of the informant, situated within a village. Time of occurrence is between 8:00-9:00 p.m. Normally, village life comes to standstill after sunset and the people keep them confined in their respective houses. In the circumstances, expectation of independent witnesses at the spot was remote. Father and son have been killed by the appellants with the assistance of their associates and the occurrence took place in front of their house. Appellants and their associates challenged the informant and his family members to come out of the house. When the informant, his father and brother came out of the house, they were targeted. Informant somehow saved himself. Mulhar, father of the informant, till understood the situation, appellant Lakhan Bhuian inflicted garasha blow on the neck of Mulhar which proved fatal. Deceased Saltoo was assaulted by appellant Churagu by means of tangi and he had sustained injuries on his face, nose, elbow etc. The circumstances in which the occurrence took place, the family members are natural witnesses and it is always expected that they would see the occurrence. Only because eye witnesses are related to deceased, their testimonies cannot be discarded. No material contradiction from the mouth of the witnesses has been taken out, therefore, non-examination of I.O. has not caused any prejudice to the appellants. Ocular version of eye-witnesses find support from the post-mortem report and evidence of Dr. Ajit Kumar Singh, PW-6. Prosecution has proved the case beyond shadow of all reasonable doubts and both the appellants have been held guilty, therefore, the impugned judgment needs no interference.

We have examined the record and perused the impugned judgment. From perusal of the fardbeyan, it reveals that parents and family members of the informant were discussing the situation under which Bidai of their daughter-in-law was not given by her parents. They were suspecting that some villagers might have misled the parents of their daughter-in-law. Conversation which was going on between the family members was overheard by daughter of Birjhan Bhuian. She went home and complained the matter to her father and other family members. Thereafter, appellants and other accused persons named in the FIR armed with deadly weapon like garasha, tangi, lathi, reached to the house of informant and challenged them to come out of the house. They have committed rioting with deadly weapon at the place of occurrence and caused assault to the deceased Mulhar and Saltoo. Death of Mulhar and Saltoo was homicidal, is not in dispute, in view of post mortem report brought on record. Jitani Devi, PW-1; Rajendra Bhuuian, PW-2; Ramkali Bhuian, PW-3 and Lallan Ram, PW-5 are eye witnesses and they are closely related to deceased. They were present in the house at the time of occurrence. Entire occurrence had taken place in front of house of the informant and therefore, all these eye witnesses had opportunity to see the occurrence. Moreover, contradiction appearing in their statement, as to who came out of the house first and who was assaulted first, are not very much relevant. The facts remain that the appellants with their associates reached to the house of the informant and challenged them to come out of the house. Father and son came out of the house and immediately, they were subjected to assault. Informant was targeted but somehow he escaped from the clutches of the accused persons and saved himself. The statements of all the four eye-witnesses are consistent on the point that appellant Lakhan Bhuian gave garasha blow on the neck of Mulhar, as a result, Mulhar died. Appellant Churagu Bhuian inflicted tangi blow on the person of Saltoo is also consistent. Injuries so caused to those two deceased find support from the post mortem report and evidence of Dr. Ajit Kumar Singh, PW-6. We do not find that any of the witnesses has exaggerated their statement during their deposition in Court. No contradiction has been taken out from any of the witness and therefore, non-examination of the I.O. has not caused prejudice to the appellants. Furthermore, if the statement given by eye witnesses are convincing and acceptable, non-examination of I.O. would not be sufficient to challenge the place of occurrence. We find all the four eye witnesses have consistently deposed before the Court that occurrence took place in front of their house, when the appellants and their associates challenged them to come out from the house. So far source of light is concerned, the witnesses have stated that it was moon light night and earthen lamp was also available on the spot. Even assuming it to be correct that light was dimming, identification of the appellants could not be doubted because both parties are residents of the same village and known to each other from before. Assault was caused to the deceased from a close range and presence of witnesses was also nearer to the place. Appellants were identified in Court by the witnesses, therefore, we do not ready to accept this argument that due to darkness, witnesses were not capable of identifying the appellants.

In course of argument, learned counsel has also raised a point that there was neither motive nor intention to commit murder. To some extent, we do agree that motive to commit murder was exactly not available and there was no sound reason to commit murder of two persons but then the preparation with which the appellants had been to the place of occurrence clearly prove their intention. Appellants and their associates constituted an unlawful assembly, took out lethal weapon and proceeded with great aggression to the house of the deceased. Not only that they had challenged the informant and family members to come out of the house and no sooner deceased came out from their house, they were targeted and injuries were caused by means of garasha and tangi on the person of Mulhar and Saltoo and they succumbed to their injuries. In a case, in which, eye witnesses have been examined, preparation and intention to commit murder stand substantiated from the evidence on record, presence or absence of motive has no role to play. We do agree that the appellants at the same time should not have been held guilty for the offence under Sections 147 and 148 of the Indian Penal Code. Offence of rioting was committed by them and they were armed with lethal weapon and they were to be held guilty for the offence punishable under Section 148 of the Indian Penal Code only. Under the circumstances, conviction recorded under Section 147 stands set aside.

Considering the evidence available on record, discussions made above, we do not find any merit in this appeal and accordingly, the same stands dismissed.