Arjun Singh son of Jothar Singh, resident of village Dumbi Birbir, near Chhath river v. …
Case Details
Cr. Appeal (D.B) No. 181 of 1998 (R) [Against the Judgment of conviction dated 30.05.1998, passed by learned Additional Sessions Judge II, Chatra, in Sessions Trial Nos.134/91 and 195/97] Arjun Singh son of Jothar Singh, resident of village Dumbi Birbir, near Chhath river, Police Station Tandwa, District- Chatra. Versus …. Appellant The State of Bihar (Now Jharkhand) …..Respondent --------- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA For the Appellant For the State -------- : Mr. Chandan Kumar, Adv. : Mr. Pankaj Kumar, A.P.P. --------- JUDGMENT C.A.V. On 17.10.2024 Pronounced On:11/12/2024 Per- Pradeep Kumar Srivastava, J. Heard learned counsel for appellant as well as learned Additional Public Prosecutor appearing for the State. 2. Above named sole appellant has preferred this appeal challenging his conviction and sentence passed by Additional Sessions Judge II, Chatra in S.T. Case No. 134/1991 and 195/1997 whereby and whereunder the appellant has been convicted and sentenced for the offences under Section 302/201 of the read with Section 34 of the I.P.C. and sentenced to undergo rigorous imprisonment for life and further R.I. of 5 years respectively for the aforesaid offences. The other co-accused person Bhuneshwar Singh was granted provisional bail on 30.09.1995, but he did not turn up to face the trial, hence his case was split up and separated after declaring him as absconder on 07.08.1997. 1 FACTUAL MATRIX 3. Factual matrix giving rise to this appeal as depicted in the F.I.R. in a narrow campus is that one Ramkali Devi (P.W.8) who is the Fufi of the informant’s father Kedar Singh (Since deceased) has gifted the landed property measuring 7 Katthas of land excluding her own nephew (Husband’s brother son) Jhotar Singh from the property right which might be inherited by him. It is further alleged that on 12.09.1990, informant’s father went to Dhangadda Bazaar to sell Papaya, but when he did not return in the night, then in the following morning i.e. 13.09.1990 informant went to the house of Ramkali Devi who told that in the last evening informant’s father came to her house and went away after taking Degchi, then informant returned to his home. Thereafter, informant’s grand-mother Ramkali Devi proceeded from her home in search of the father of the informant and saw the dead body of the informant’s father near the bank of Chhat River, where several local people were assembled. It is further alleged that one Karo Thakur (P.W.10) told that he had seen Kedar Singh (deceased) along with Bhuneshwar Singh and Arjun Singh returning together from the market. It is also disclosed that Kedar Singh went to the house of Ramkali Devi to bring a degchi while Bhuneshwar Singh and Arjun Singh were standing on the road under the peepal tree. Similarly, Bhigal Mahato (P.W.11) and Satan Mahato (not examined) also disclosed that yesterday while they were returning along with their buffaloes, they saw Kedar Singh, Arjun Singh and Bhuneshwar Singh were going together towards the bed of the river. The informant’s co-villagers Bifa Sao (P.W.2) and Rajendra Ram (P.W.11) also claimed to have seen that Bhuneshwar Singh and Arjun Singh were assaulting to Kedar Singh in the bed of the 2 river. It is alleged that Arjun Singh is the son of Jhotar Singh and Bhuneshwar Singh is the son of Jhotar’s Brother-in-law. It is also alleged that the informant inquired with Jhotar Singh about the occurrence who disclosed in presence of several villagers that his son Arjun and brother- in-law’s son Bhuneshwar Singh, have killed Kedar Singh by assaulting him by stone in the bed of the Chhat River. On the basis of the above information Tandwa P.S. Case No. 76/90 was registered on 13.09.1990 for the offences under Section 302/201 read with Section 34 of the I.P.C. against the above named accused persons. 4. After completion of investigation, finding sufficient evidence against accused persons namely, Jhotar Singh, Bhuneshwar Singh and Arjun Singh, charge-sheet was submitted by the I.O. for the aforesaid offences. The accused Jhotar Singh and Bhuneshwar Singh remained absconded, hence their case have been separated and Arjun Singh alone faced the trial in this case, who has been held guilty and sentenced after conclusion of trial as stated above which has been assailed in this appeal.
Legal Reasoning
5. Learned counsel for the appellant assailing the impugned judgment of conviction and sentence of the appellant has vehemently argued that the learned trial court has miserably failed to appreciate the evidence of the witnesses examined by the prosecution, who have claimed to be the eye witness of the occurrence. The whole prosecution case is based upon circumstantial evidence and the circumstances relied upon by the prosecution are of trifling nature. The theory of last seen propounded by the prosecution suffers from vital contradictions and infirmities in the evidence of the witnesses claiming to have last seen the accused with the deceased. The next theory about extra-judicial confession of the 3 co-accused Jhotar Singh in presence of several villagers to the effect that present appellant along with Bhuneshwar Singh have killed the deceased assaulting by stone has no leg to stand. It is admitted by the witnesses that only on the basis of suspicion, Jhotar Singh was apprehended by the villagers and brutally assaulted. Thereafter, a false story of extra-judicial confession was manipulated due to old land dispute in respect of lands belonging to Ramkaliya Devi. The main prosecution witness Bifa Sao (P.W 2) is absolutely unreliable witness in view of fact that in examination-in-chief, he has claimed to have seen the co-accused persons Arjun Singh and Bhuneshwar Singh assaulting to deceased near the Chhat river bed, but he returned to his home, surprisingly, he did not say the above story either to the informant or any of the villagers as admitted in his cross-examination. Keeping silence for about 2 days in such a serious matter is sufficient to disbelieve the testimony of this witness. The learned trial Court has further failed to properly appreciate the golden “Panchsheel principle” laid down in Sharad Birdhichand Sarda Verus State of Maharashtra 1984 SCC 116 to be played and followed in the trial of the case based on circumstantial evidence. It is further argued that in the present case, the circumstantial evidence relied upon by the prosecution, even if accepted on their face value, does not indicate the commission of offence of murder by the appellant and no one else. Therefore, the conviction and sentence of appellant is absolutely illegal and based upon extraneous facts and fit to be set aside. 6. Per contra: learned A.P.P. appearing for the State has vehemently opposed the contentions raised on behalf of the appellant and submitted that the prosecution has been able to prove the charges levelled against 4 the appellant, through the circumstantial evidence beyond all reasonable doubts. There are ample evidence on record showing that the appellant along with other co-accused were seen with the deceased, just thereafter, deceased was murdered. There is extra-judicial confessional statement of co-accused Jhotar Singh. The chain of circumstances chronologically proved by the prosecution leads towards only conclusion about to be the guilt of the accused-appellant and there is no possibility of any different conclusion. The learned Trial Court has very wisely and aptly analysed and appreciated the prosecution evidence and arrived at right conclusion about the guilt of the appellant. There is no reason to take a different view from the trial Court. This appeal has no merits and fit to be dismissed. 6. We have gone through the impugned judgment and order along with record of trial court in the light of contentions raised on behalf of both parties. It appears that the learned trial court has relied upon following circumstances: (i) In the evening of occurrence i.e. on 12.09.1990 at about 7:30 PM, accused persons Bhuneshwar Singh and Arjun Singh (appellant) were seen returning from market together with the deceased. (ii) Bhuneshwar Singh and Arjun Singh (Appellant) called Kedar Singh (deceased) from the house of his grand-mother Ramkali Devi (P.W.8) and accompanied with him. (iii) The eye witnesses Bifa Sao (P.W.2) and Bhigal Mahto (P.W.11), Karo Thakur (P.W.10) and Rajendra Ram (P.W.12) have seen the appellant assaulting to deceased near Chhat river bed. 5 7. For better appreciation of the case we have to reappraise and re-appreciate the evidence adduced in this case. Prabhu Singh (P.W.3), the informant of this case admits that he is not the eye witness of the occurrence. According to his evidence, on 12.09.1990 at about 05:00-06:00 PM his father Kedar Singh was returning from village bazar after selling papaya, but he did not return till night. In the next day morning, in search of his father this witness went to the house of his grand-mother Ramkali Devi (P.W.8) which is situated between Dhangadda Market and the home village of this witness and enquired with Ramkali Devi (P.W.8) who disclosed that his father returned from his home in the last day evening itself along with Bhuneshwar Singh and Arjun Singh, then this witness return to his village home at Birbir. While he was going to ask from Arjun Singh (present appellant) as to where about of his father, meanwhile grand-mother of this witness Ramkali Devi (P.W.8) who was going to Chat river told that the dead body of Kedar Singh is lying near the river bed and someone had killed him. This witness went to Chhat river bed and found the dead body of his father lying there. Karo Thakur (P.W.10) told that he has seen Arjun Singh, Bhuneshwar Singh and Kedar Singh were returning together from the market. Bifa Sao (P.W. 2) and Rajendra Ram (P.W.12) also told that they have seen Bhuneshwar Singh, Arjun Singh were assaulting Kedar Singh (deceased) with lappad-thappad. Thereafter, this witness went to police station, his fardbeyan was recorded and after preparing inquest report, dead body was sent to hospital for post-mortem. He has attributed motive for incident that Ramkali Devi (P.W.8 grand-mother of this witness) had given all her land to 6 deceased Kedar Singh for which her uncle Jhotar Singh was always threatening to Kedar Singh to kill him. He also states that local witnesses caught hold of Jhotar Singh and brought near the dead body of the deceased and he disclosed that his son Arjun Singh and son of his brother-in-law Bhuneshwar Singh have killed Kedar Singh. P.W.8 (Ramkali Devi):- The evidence of P.W. 8 Ramkali Devi goes to show that on the date of incident her nephew Kedar Singh came to her house in the evening for taking degchi and at that time, Arjun Singh and Bhuneshwar Singh were standing in front of her house near peepal tree. She further states that Bhuneshwar Singh and Arjun Singh took away dragging Kedar Singh near Chhat River. Next day morning, son of Kedar Singh namely, Prabhu Singh came to her house in search of his father, then she disclosed that in the night he had gone towards river side along with Bhuneshwar Singh and Arjun Singh. In her cross-examination, this witness admits that when she saw the accused persons dragging her nephew Kedar Singh, she did not raised alarm nor disclosed to anyone in the village. She also admits that near the peepal tree there are houses of Nandu Mahto, Jagdish Mahto and Murari Mahto etc. who reside along with their family. She herself has not seen any person assaulting the deceased. She has also given contradictory statements regarding relationship with Arjun Singh. At one place she admits that he is also her nephew and later stage in her cross-examination says that she has no relation with Arjun Singh and Bhuneshwar Singh, but she admits that Arjun Singh and Bhuneshwar Singh are mamera and fufera brother. She further 7 admits that in the next day morning she did not disclose to anyone that Bhuneshwar Singh and Arjun Singh have taken away Kedar Singh dragging towards Chhat river bed. She also admits that the villagers caught hold of Jhotar Singh and brought near the place of occurrence where he disclosed that Bhuneshwar Singh and Arjun Singh have killed the deceased. P.W.2 Bifa Sao has claimed to be eye witness of the occurrence. According to his evidence, he was also returning from Dhangadda market and reached near Chat river at village Dhubi, then saw that Arjun Singh and Bhuneshwar Singh were assaulting to Kedar Singh by stone and lathi. Bhuneshwar Singh was possessing lathi and due to fear he turned his way and returned to his home. In the next day morning, he came to know that Kedar Singh has been died near river bed. In his cross-examination he admits that it was dark night. Accused-persons are co-villagers, hence he identified them by voice also because they were abusing and assaulting to Kedar Singh. He did not raise any alarm. This witness did not disclose the above incident in the night to any villager or even to the son of the deceased, although they were present at their home and they are closed door neighbours. In the next day morning also he did not disclose above incident to any person in the village. P.W.10 Karo Thakur has simply stated that while Kedar Singh along with Arjun Singh and Bhuneshwar Singh were returning from the market, Kedar Singh disclosed that he is going to take Degchi from the house of his fufu. In the next day morning, he came to know that Kedar Singh has been murdered. He also disclosed that 8 Jhotar Singh was brought before the police where he disclosed that Arjun Singh and Bhuneshwar Singh have killed Kedar Singh due to land dispute. In his cross-examination, he admits that since Bhuneshwar Singh met him near the school, hence he suspected that they might have killed Kedar Singh. P.W.11 Bhigal Mahto:-, According to his evidence when he was returning after grazing buffaloes in the evening, he saw that Arjun Singh, Bhuneshwar Singh and Kedar Singh were returning from the market and when he reached near the Chat River at about a distance of 200 ft, they killed Kedar Singh. According to his cross-examination, he was returning after grazing cattle at about 06:00 to 07:00 PM and also admits in para 8 of his cross-examination that incident did not take place before him. Several persons were returning from the bazaar. He further admits enmity between accused persons and Kedar Singh. He also admits that he has given evidence only on the basis of suspicion against the accused persons. P.W.12 Rajendra Ram has also claimed to be an eyewitness and stated that while he was also returning from the market at about 05:00-05:30 PM, he saw Arjun Singh and Bhuneshwar Singh were proceeding ahead and Bifa Sao (P.W.2) was behind them. At about 07:00 PM, he saw Arjun Singh and Bhuneshwar Singh were assaulting Kedar Singh and in the next day morning came to know that Kedar Singh has been died and his dead body was lying near the Chhat river bed. 9 In his cross-examination he admits that at the time of incident neither this witness nor Bifa Sao (P.W.2) raised any alarm nor informed to village Mukhiya or any villager. In the next day morning, he went to place of occurrence where also he did not disclose that he has seen Bhuneshwar Singh and Arjun Singh assaulting the deceased. Apart from the above ocular witnesses P.W.1 Vipin Kumar is the formal witness and constable of Chatra Sadar Police Station who has proved the signature and writing of the then Officer In-charge, Tandwa Mohd. Anwarul Haq over the formal F.I.R. as Exhibit-1. P.W.4 Dr. Nitya Nand Mandal has proved the post-mortem report of the deceased as Exhibit-3. According to him the cause of death was haemorrhage and shock as a result of head injury caused by hard and blunt object. P.W.5 Kanhai Kumar is the hearsay witness who reached at the place of occurrence after hearing hulla in village, but has been declared hostile by the prosecution. P.W.6 Giran Singh is also a hearsay witness of the occurrence. According to him, on the next day morning he heard hulla in the village that Kedar Singh has been murdered and informant’s Fufi was saying that Arjun Singh and Bhuneshwar Singh were dragging Kedar Singh near Chhat River. Jhotar Singh also confessed that his son Arjun Singh and Bhuneshwar Singh have killed the deceased due to land dispute. P.W.7 Fuluwa is the wife of the deceased. According to her evidence when her husband did not return to home, then in search of 10 him she went to the house of Jhotar Singh, but he did not replied satisfactorily. Thereafter, she came to know about the murder of her husband and dead body was lying near Chhat River. There is no other material in her evidence. P.W.9 Bhola Rana is also a hearsay witness. According to his evidence, he went to take bath in the Chat river where he saw the dead body of Kedar Singh was lying in injured condition. Thereafter, Jhotar Singh was caught by villagers who publically announced that his son Arjun Singh and his brother-in-law’s son Bhuneshwar Singh have killed Kedar Singh due to land dispute. 8. From the aforesaid trend of ocular testimony of witnesses examined by the prosecution, it emerges that though, the deceased was murdered and his dead body was found near Chhat river of the village and there were severe injuries on his head and chest wall which were leading to shock and haemorrhage and consequential death. The circumstances relied upon by the prosecution are:- (i) Last seen theory propounded by the prosecution with the accused and deceased. (ii) Claim of P.W.2 Bifa Sao, P.W.10 Karo Thakur and P.W. 11 Bhigal Mahto that they have seen the accused persons Arjun Singh and Bhuneshwar Singh were assaulting to deceased near the river bed and; (iii) Alleged extra-judicial confession of co-accused Jhotar Singh. 9. We have considered the aforesaid circumstances in threadware manner and arrive at conclusion that all the above facts proved by prosecution are not reliable at all for the following reasons: 11 (a) P.W.8 (Ramkali Devi) has stated that in the evening at about 07:00 to 07:30 PM Kedar Singh came to her house for taking Degchi, thereafter he went away. She had also seen accused Arjun Singh and Bhuneshwar Singh were standing near Peepal tree. She also admits that it was a dark night and adjacent to the said peepal tree there were houses of Nandu Mahto, Jagdish Mahto and Murari Mahto and all were residing there with their family members. The conduct of this witness as per her own admission that she did not raise alarm when the accused persons called upon Kedar Singh from her house and took him away dragging. At that time, Kedar Singh (deceased) was not raising alarm nor this witness raised any alarm or attempted to save her nephew or asked shelter from any of her villagers. Moreover in the next day morning also she did not inform the family members of the deceased. It is also obvious that P.W.8 has not disclosed to the informant Prabhu Singh in the next day morning that the accused persons called the deceased from her house and took away Kedar Singh forcibly by dragging. (b) Similarly, P.W.3 Bifa Sao, P.W.10 Karo Thakur who are the co-villager of the deceased have claimed to last seen the deceased with accused persons together while returning from the market and also saw that accused persons Arjun Singh and Bhuneshwar Singh were assaulting to Kedar Singh, but they managed to escape from there. It is very surprising that both the witnesses are closed door neighbours of the informant who returned to their home in the night, but did not disclosed the above story to any of the villager or the family members of the informant. They have also 12 not volunteered to disclose the above events at police station. Similarly, P.W11 Bhigal Mahto has claimed to see the accused persons assaulting the deceased. He went to place of occurrence after hearing hulla. According to him it was 06:00 to 07:00 PM when the occurrence took place and he claims to see the occurrence from the distance of 200 yards. He has also not disclosed the above facts to any of the villagers. P.W.12 Rajendra Ram has also deposed that when the accused persons were assaulting to Kedar Singh he was returning from the market and Bifa Sao was behind him. This witness is also closed door neighbour of the informant, but did not communicate above story at any point of time while the informant was searching his father. 9. Keeping in view the above analysis of the evidence of material witnesses, it emerges that their evidence suffers from material inconsistencies, improvement and concoction of false story. The learned trial court has ignored the material contradictions and improbabilities appearing in the evidence. Aforesaid branded eyewitnesses are not trustworthy at all and it is not safe to convict the appellants on the basis of testimony of unreliable witnesses. The extra-judicial confession of the accused Jhotar Singh (absconder) before the villagers also appears to be extorted one by brutally assaulting him. 10. In view of aforesaid discussion and reasons, we are of the firm view that the conviction and sentence of the appellant recorded by the learned trial court is based upon conjecture and surmises and beyond the weight of evidence available on record. Accordingly, 13 we set aside the conviction and sentence of the appellant Arjun Singh for the offences under Section 302/201 read with Section 34 of the I.P.C. passed by learned Additional Sessions Judge II, Chatra, in Sessions Trial Nos.134/91 and 195/97. 11. Appellant is on bail and he is now discharged from the liability of bail bonds. Sureties shall also be discharged. 12. Let the copy of this judgment along with record of trial court be sent back to concerned Court for information and needful. (Rongon Mukhopadhyay, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Date: 11 /12/2024 Amar/- A.F.R. 14