Murder appeal by a surviving appellant convicted for an unlawful-assembly killing of a man guarding paddy. No specific overt act was proved against him and the sole eyewitness saw only another accused act. Conviction and life sentence set aside.
Conviction and sentence set aside; appellant discharged from bail bond liability; sureties discharged.
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Criminal Appeal (D.B.) No. 27 of 1999(R)
[ Against the Judgment of conviction dated 15.12.1998 and Order of sentence dated 19.12.1998, passed by learned Additional Sessions JudgeI, Chatra, in Sessions Trial Case No.478 of 1996 ]
Baleshwar Bhuiyan Son of late Ganpat Bhuiyan Resident of Village – Kathotia, P.S. – Chatra, District Chatra.
The State of Bihar
.... …. Appellant Versus .... .... Opp. Party
P R E S E N T
HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
…… For the Appellant : Mr. B.K. Dubey, Advocate For the State : Ms. Anuradha Sahay, Addl. P.P.
…… C.A.V. on 18.10.2024 Pronounced on 11.12.2024
Per Pradeep Kumar Srivastava, J.
1. Heard learned counsel for the parties.
2. The above named appeal was preferred by the appellants Fekuwa Bhuiyan, Chander Bhuiyan and Baleshwar Bhuiyan out of them Fekuwa Bhuiyan and Chander Bhuiyan have been died during the pendency of this appeal, therefore, appeal on their behalf has been abated vide order dated 30.11.2023.
3. In the instant appeal, the appellant has challenged his conviction and sentence for the offence under Section 302 r.w. Section 149 of the Indian Penal Code and was directed to undergo rigorous imprisonment for life vide judgment dated 15.12.1998/19.12.1998
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passed by the Additional Sessions Judge-I, Chatra in Sessions Trial Case No.478 of 1996.
4. Factual matrix giving rise to this appeal as depicted in the F.I.R. (Ex.1) is that the informant’s father Puran Thakur @ Buttu Thakur aged about 50 years had kept about 150 to 200 bundles of paddy crops in a khalihan situated at Village Kathautiya within the jurisdiction of Sadar Police Station Chatra. It is alleged that in the intervening night of 12/13.12.1995 said Puran Thakur along with his minor son Ashish Kumar (P.W.-2) were sleeping in the khalihan to keep vigil on paddy crops. Meanwhile in the night at about 11 to 12 hours about 10 to 12 miscreants armed with lathi, danda and sharp cutting weapons like tangi etc. reached there and dragged Puran Thakur out of the hut and started brutally assaulting him by their respective weapons. Due to night, no one heard hues and cries raised by him and his minor son Ashish Kumar hearing the screams of his father with a view to protect himself and due to fear managed to escape from there and reached in trembling condition to the house of one Aziz Mian for shelter. In the next day morning, informant Aditya Kumar Thakur came to know about the occurrence and he along with his younger brother Ashish Thakur, uncle Ganga Thakur, Chetlal Thakur and others went to the khalihan where his father Puran Thakur was lying
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dead under pool of blood sustaining injuries on his neck and all other vital part of the body caused by sharp cutting weapon. The paddy crops lying in the khalihan were also burnt into ashes. It is also claimed in the F.I.R. that one Bunduwa Bhuiyan (P.W.-1) was also sleeping in his khalihan which was situated adjacent to the khalihan of the deceased and has seen the whole occurrence caused by the accused persons and was also assaulted in this incident.
5. On the basis of above information, F.I.R. was registered against 10 to 12 unknown miscreants vide Chatra Sadar P.S. Case No. 112 of 1995 for the offences under Sections 147, 148, 149, 302 and 435 of the I.P.C. After completion of investigation, charge-sheet was submitted against six accused persons against whom charges were framed and read over and explained to them to which they denied and claimed to be tried.
6. In the course of trial, altogether seven witnesses were examined by the prosecution and following documentary evidence were also adduced:
Exhibit 2 : P.M. Report of the deceased.
7. After completion of prosecution evidence, statement of accused persons under Section 313 of the Criminal Procedure Code were
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recorded. The case of defence is denial from occurrence and false implication due to previous enmity. However, no oral or documentary evidence has been adduced by the defence.
8. The learned Trial Court after appreciating the oral as well as documentary evidence led by prosecution arrived at conclusion that the prosecution has failed to prove the charges against the accused persons namely Ramdeo Bhuyian, Kanan Bhuyian and Ramautar Bhuyian, hence, acquitted them but found sufficient evidence showing involvement of present appellants Fekuwa Bhuiyan, Chander Bhuiyan and Baleshwar Bhuiyan and convicted and sentenced them as stated above.
9. While assailing the impugned judgment of conviction and order of sentence against the sole surviving appellant, the learned counsel Shri B.K. Dubey has urged that in the instant case (P.W.-1) Bunduwa Bhuiyan is the sole eye witness of the occurrence who has attributed no specific overt act against the Baleshwar Bhuiyan rather he has specifically deposed that Fekuwa Bhuiyan gave him two danda blow and also cut the neck of deceased by tangi due to which he died. The son of deceased fled away due to fear. The son of deceased Ashish Kumar who has also been examined as P.W.-2, has also not attributed any specific overt act or even claimed to identify the appellant Baleshwar Bhuiyan. The informant Aditya
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Thakur is a hearsay witness. Similarly P.W.4 Ganga Thakur is a hearsay witness, who came to know about the incident in the next day morning. P.W.-3 Surti Devi and P.W.-6 Pramod Kumar have been tendered by the prosecution and have expressed their no knowledge about the incident. P.W.-7 Dr. Narendra Kumar has conducted autopsy on the dead body of the deceased and proved the P.M. Report as Ex.-2. The Investigating Officer of this case has not been examined by the prosecution.
The totality of the facts and circumstances proved in this case by the prosecution does not show the involvement of the appellant in the alleged occurrence either as perpetrator or abetter and even the story of any unlawful assembly acting with any particular object has been brought on record to establish the guilt of the appellant. As such, the conviction and sentence of the appellant is totally unwarranted and beyond the weight of evidence available on record. The learned Trial Court has committed serious illegality while appreciating the evidence available on record and erroneously held the appellant guilty for the offence under Section 302 r.w. Section 149 of the I.P.C. The conviction and sentence of the appellant is fit to be set aside along with this appeal.
10. Per contra: learned Addl. P.P. Ms. Anuradha Sahay has opposed the aforesaid contentions raised on behalf of appellant and
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submitted that there is no illegality or infirmity in the impugned judgment and order rather the learned Trial Court has very wisely and aptly considered all the aspects of the case and evidence led by prosecution and arrived at right conclusion of guilt of the appellant along with other co-accused persons, hence, this appeal is devoid of merit and fit to be dismissed.
11. We have given anxious consideration to the points of argument raised on behalf of learned counsel for respective parties and also perused the Trial Court record and find that the sole eye witness of occurrence as claimed by the prosecution is Bunduwa Bhuiyan (P.W.-1) who claims to be present at his khalihan just adjacent to the khalihan of the deceased and on the fateful night of occurrence, there was darkness in the night and he saw that three persons namely Chander Bhuiyan, Fekuwa Bhuiyan and Baleshwar Bhuiyan along with three unknown persons came to the khalihan of the deceased and out of them Fekuwa Bhuiyan assaulted him twice with a danda and also cut the neck of Buttu causing his death. He has specifically stated that he has not seen anything else committed by any other accused persons. The minor son of deceased who was also sleeping in the khalihan woke up and fled away due to fear. P.W.-2 Ashish Kumar, the minor son of deceased who has claimed that 10 to 12 persons came to khalihan
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in the night and dragged out his father from the hut and assaulted him by lathi, danda and tangi. Hearing the screams of his father, this witness managed to flee away due to fear from the back side of the hut and took shelter in the house of Aziz Mian. He has not identified any of the accused persons. It also appears that P.W.-5 Aditya Thakur (informant) and brother of deceased namely Ganga Thakur (P.W.-4) are hearsay witness of the occurrence having no personal knowledge. P.W.-7 Dr. Narendra Kumar is a former witness who has conducted autopsy of the deceased.
12. The evidence led by prosecution as discussed above clearly goes
to show that no specific overt act has been attributed against the appellant Baleshwar Bhuiyan and his identification as well as presence on spot also appears to be doubtful. Even if his presence may be assumed as per evidence of P.W.-1 at the place of occurrence, but no specific overt act has been proved against him showing his participation in the alleged crime. In this view of the matter, we find that there is no concrete evidence at all to prove the guilt of appellant Baleshwar Bhuiyan for the offence of murder of the deceased. It appears that the learned Trial Court has miserably failed to properly appreciate the evidence available against the appellant and arrived at wrong conclusion while recording guilt of the appellant and sentencing him with severe
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punishment of imprisonment for life. We find substance in the points of argument raised on behalf of appellant and merits in this appeal. Therefore, in view of aforesaid discussions and reasons, the conviction and sentence of appellant Baleshwar Bhuiyan is hereby set aside and this appeal is allowed. Appellant is on bail. He is also discharged from liability of bail bond. Sureties are also discharged.
13. Let a copy of this judgment along with Trial Court record be sent back to the concerned Trial Court for information and needful.
14. Pending I.A., if any, stands disposed of.
(Rongon Mukhopadhyay, J.)
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi Dated: 11/12/2024 Sachin / NAFR
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1 issue framed by the court
Whether conviction under Sections 302/149 IPC could stand where no specific overt act was attributed to the appellant and identification was doubtful?
3 provisions across 2 enactments
Baleshwar Bhuiyan
The State of Bihar
Rongon Mukhopadhyay
Pradeep Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
