Agan Chik Baraik Alias Lumbha ... vs The State Of Jharkhand
2022 Latest Caselaw 4492 Jhar

                   Criminal Appeal (D.B.) No. 55 of 2016

             Against the judgment dated 08.12.2015 passed by Sri Shyam Lal Saroj,
             learned District and Additional Sessions Judge I, Gumla in S. T. No. 204
             of 2013.                                          ---

             Agan Chik Baraik alias Lumbha alias Langra...          ...   Appellant

                                  Versus
             The State of Jharkhand                      ...        ...   Respondent

                                      ---

             For the Appellant        : Ms. Sunita Kumari, Advocate
             For the Respondent       : Mr. Saket Kumar, A.P.P.

                                ---
                             Present:
             HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                 HON'BLE MR. JUSTICE AMBUJ NATH
                                ---

10.11.2022               Heard Ms. Sunita Kumari, learned counsel for the appellant

and Mr. Saket Kumar, learned A.P.P. for the State.

2. This appeal is directed against the judgment of conviction dated 08.12.2015 and order of sentence dated 09.12.2015 passed by Sri Shyam Lal Saroj, learned District and Additional Sessions Judge I, Gumla in S. T. No. 204 of 2013 whereby and whereunder the appellant has been convicted for the offences punishable under Sections 324/34, 326/34, 302/34 and 307/34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 2,000/- for the offences under Section 302/34, rigorous imprisonment for 10 years along with a fine of Rs. 2,000/- each for the offences under Sections 326/34 and 307/34 I.P.C. He has also been sentenced to undergo rigorous imprisonment for 3 years for the offences punishable under Sections 324/34 I.P.C. In default of payment of fine, the appellant shall further undergo simple imprisonment for one year for each default. All the sentences shall run concurrently.

3. The fard beyan of Bhimkaran Singh was recorded on 13.02.2013 at about 8 :30 A.M. in front of the dead body of Puran Chik Baraik in which he has stated that he and Puran Chik Baraik had sown lac seeds in Bari Longra Forest and they used to guard the place every day. On 12.02.2013 in the night after dinner, the informant and Puran Chik Baraik had gone to the shanty for keeping guard equipped

with blankets, arrows, catapult, axe, farsa, torch etc. When they reached near the shanty, they found four persons coming from the forest towards Gurma basti. In the light of the torch, they could recognize Agan Chik Baraik @ Lumbha @ Langra (appellant) and Ratiya Chik Baraik. After they went, he and Puran Chik Baraik went to sleep at the same place. It has been alleged that at about 11:00 P.M., Ratiya Chik Baraik all of a sudden assaulted him with Farsa. He had caught hold of the Farsa for which there was a tussle between the informant and Ratiya Chik Baraik. In the meantime, he saw Agan Chik Baraik committing the murder of Puran Chik Baraik by assaulting him on his head. At this he threw away the farsa and fled away from the place of occurrence and went to the house of Mangru Kharia. He disclosed about the incident to Mangru Kharia and thereafter, Mangru Kharia and Balu Kharia had taken him safely to his village. He in an injured state went to the house of Puran Chik Baraik and disclosed about the incident to his wife and son - Narayan Chik Baraik.

The reason for the occurrence is that Puran Chik Baraik and Agan Chik Baraik are step brothers and there was a dispute between them since long with respect to partition of land. It has been alleged that about 15 days prior to the occurrence, Agan Chik Baraik in an infuriated state has disclosed that either he (Agan Chik Baraik) or Puran Chik Baraik will remain alive.

Based on the aforesaid allegations Palkot P. S. Case No. 7 of 2013 was instituted against Agan Chik Baraik and Ratiya Chik Baraik for the offences punishable under Sections 324, 326, 307, 302/34 I.P.C. After completion of investigation, charge-sheet was submitted against both the accused persons pursuant to which cognizance was taken under Sections 324, 326, 307, 302 read with Section 34 I.P.C. Ratiya Chik Baraik was declared a juvenile and his case was split up and sent to Juvenile Justice Board, Gumla for inquiry and disposal. The case of Agan Chik Baraik was committed to the court of Sessions where, it was registered as S. T. No. 204 of 2013. Charge was framed against the accused for the offences punishable under Sections 324/34, 326/34, 302/34 & 307/34 I.P.C. which was read over, explained and interpreted in Hindi to which the accused pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as 12 witnesses in support of its case.

P.W. 1 - Surendra Chik Baraik has deposed that Puran Chik Baraik was murdered nine months back. On coming to know about the murder of Puran, the villagers had gone to the place of occurrence. He does not know the reason for the occurrence.

In cross-examination, he has stated that he does not know as to who had committed the murder.

P.W. 2 -Shankar Sahu, P.W. 3 - Dassu Baraik and P.W. 4 - Narayan Singh did not support the case of the prosecution and were declared hostile by the prosecution.

P.W. 5 - Kalawati Devi is the wife of the deceased who has deposed that on the date of the incident, she was in her house. Her husband and Bhimkaran Singh had gone at 9:00 P.M. to the land, where the Kusum tree was situated. At midnight, Bhimkaran Singh, Balu Kharia and Mangru Kharia had come to her house and they disclosed that Narayan, Ratiya and Agan Chik Baraik had committed the murder of Puran Chik Baraik.

In cross-examination, she has deposed that she is not an eye- witness to the occurrence. She has come to know about the incident from Bhimkaran Singh. There was no case lodged against the accused prior to the present case. She has stated that she solemnized a second marriage with one Kattu Baraik. However, for the last 10 years she was staying with her present husband Puran Chik Baraik.

P.W. 6 - Bhimkaran Singh is the informant who has deposed that on the date of the incident, he along with Puran Chik Baraik had gone to guard the lac when Ratiya Chik Baraik and Agan Chik Baraik had come and after having some small talks, they had left. At around, 11:00 P.M., they had once again returned and started assaulting them. He has stated that Ratiya had assaulted him on his head with a dauli and Agan Chik Baraik had assaulted Puran Chik Baraik with a dauli and Chhuri (knife). When he could not snatch the dauli from Ratiya, he fled away to Tetarchoura village and disclosed about the incident to Mangru Kharia. He further stated that Mangru and Balu Kharia had thereafter left him at his house. He stated that he knows both the accused persons.

In cross-examination, he has deposed that it was winter when the incident had taken place. Both were sleeping by wrapping four blankets each. Since it was cold, they had also covered their faces with blankets. While the tussle was going on with respect to dauli, he had ultimately fled away. He stated that since it was dark, the accused persons did not see him fleeing away. The mattress and the blankets in the bed of Puran was blood stained. He has also stated that police has seized the blanket which was found cut. He does not wear power glasses because he can not afford it. The partition of land between Agan and Puran had already taken place and they both cultivate their own share of land. He has stated that both he and Puran smoke cannabis.

P.W. 7 - Birsa Oraon is the Investigating Officer who has proved the endorsement on the fard beyan which has been marked as Exhibit 1/1. He has also proved the formal FIR which has been marked as Exhibit 2. He has proved the signature and hand-writing of the officer in-charge in the inquest report which has been marked as Exhibit 3. The blood stained blanket which has been produced in the court has been marked as Material Exhibit I. He has inspected the place of occurrence which is at a distance of half a kilometer from the village Gurma Dengatoli. At the place of occurrence, was situated a shanty covered with a plastic. Under the plastic cover, the dead body of Puran Chik Baraik was found. He had recorded the re-statement of the informant and had also recorded the statement of Surendra Baraik, Damu Baraik, Shankar Sahu, Narayan and Kalyani Devi. All the witnesses have supported the incident. He has also obtained the post mortem report as well as the injury report. After the supervision report of his S.D.P.O. was received, he has submitted his charge-sheet. He has proved the writing and signature of the Officer Incharge Birendra Toppo in the seizure list which has been marked as Exhibit 4. He had recorded the statement of Damu Baraik who has stated about the disclosure of the incident made by Bhimkaran Singh. Similar was the statement of Narayan Singh. The witness - Shankar Sahu had stated about a quarrel between Agan Chik Baraik and Puran Chik Baraik regarding partition of land about 15 days back. Nothing of substance has come in his cross-examination.

P.W. 8 - Dr. Rajesh Kumar Toppo has conducted the autopsy on the dead body of Puran Chik Baraik on 13.02.2013 and had found the following injuries:

(I) Rigor mortis present in all four limbs.

(ii) Findings:- Body lying supine on P.M. Table with eyes closed. Inspection:- Injury no. 1 - lacerated wound over face size 5" x 2" x 2 ½ " with brain material coming out through fractured face.

Dissection:- Brain material filled with spotted blood, heart empty, lungs, liver, spleen fail, stomach filled with semi digested small intestine and large intestine filled with gas.

Opinion:- All injuries are ante-mortem.

The cause of death was opined to be haemorrhage and shock due to hard blunt object. He has proved the post mortem report which has been marked as Exhibit 5. He has deposed that this type of injury may be caused by forcible attack on the back side with farsa.

In cross-examination, he has deposed that such type of injury cannot be caused by sharp cutting weapon like Chhura (big knife).

P.W. 9 - Birendra Toppo was the Officer Incharge of Palkot Police Station and on 13.02.2013 he had recorded the fard beyan of Bhimkaran Singh. He had proved his signature on the fard beyan and the statements of witnesses Narayan Chik Baraik and Mangru Singh had signed and Bhimkaran Singh had put his thumb impression upon the same. The entire fard beyan was marked as Exhibit 1. He had also prepared the inquest report of deceased Puran Chik Baraik which has been marked as Exhibit 3. He has also proved the seizure list of the blanket which was cut on one side and which was marked as Exhibit 4. A search was conducted in the house of the accused persons, but no incriminating articles were recovered.

P.W. 10 - Mangra Singh is the son of Bhimkaran Singh, who has deposed that he was in Gumla on 12.02.2013, when at about 12:15 A.M., Narayan Chik Baraik had called him over phone and disclosed that his father (Narayan Chik Baraik's) has been murdered while the father of this witness has been injured. The name of the assailants were disclosed as Agan Chik Baraik and Ratiya Chik Baraik. He left for his house in the morning and when he reached near the picket, he found his father drenched in blood. He went to the place of occurrence when he saw Puran Chik Baraik lying dead. He identified his signature in the fard

beyan which has already been marked as an exhibit. He has also identified his signature in the seizure list.

P.W. 11 - Dr. Sanjeev Kumar has deposed that on 13.02.2013, he had examined Bhimkaran Singh and had found the following injuries:

(i) 1 ¼ " cut injury on the right of the head.

(ii) ½" lacerated wound in his right hand caused by small sharp weapon.

The nature of injuries were found to be simple. The age of injuries was found to be within one hour. He has proved the injury report which has been marked as Exhibit 6.

P.W. 12 - Narayan Chik Baraik is the son of Puran Chik Baraik. He has deposed that on 12.02.2013 his father and Bhimkaran Singh had gone to Bari Longra to keep guard of the lac when at midnight Bhimkaran Singh came to his house and disclosed that his father has been murdered by Agan Chik Baraik. He saw the injury on the right hand of Bhimkaran Singh. He had identified his signature on the fard beyan which has been marked as Exhibit 1/1. He has also identified his signature in the seizure list as well in the inquest report which has been marked as Exhibit 4/1 and 3/1 respectively. He has stated that at the time of the incident, he was sleeping in his house.

The statement of the accused was recorded under Section 313 Cr.P.C. in which he has simply denied his involvement in the commission of the murder.

5. Ms. Sunita Kumari, learned counsel for the appellant has submitted that the conviction of the appellant is based upon the evidence of the solitary eye-witness P.W. 6. It has been submitted that on dissection of the evidence of P.W. 6, it is manifest that the same suffers from contradictions and inconsistencies and in absence of any corroborative evidence it would be unsafe to rely upon the evidence of P.W. 6.

6. Mr. Saket Kumar, learned A.P.P. for the State has submitted that the evidence of P.W. 6 is reliable and trustworthy since P.W. 6 is also an injured witness, who has clearly witnessed the assault committed by the appellant upon Puran Chik Baraik.

7. We have heard the respective counsels and have also perused the lower court records.

8. The prosecution has examined as many as 12 witnesses and P.W. 6 is the only eye-witness to the occurrence and he is an injured witness as well. We therefore have to see as to whether the evidence of P.W. 6 inspires confidence and can be relied upon to sustain the conviction of the appellant or not. The deceased Puran Chik Baraik and P.W. 6 had left for the place of occurrence in order to guard the lac from thieves. Apart from P.W. 6, this fact has been supported by the wife of the deceased (P.W. 5) and son of the deceased (P.W. 12). When we evaluate the evidence of P.W. 6, we find that when they reached near the plastic covered shanty, the appellant and his son came who after some time had left. Nothing has been stated by P.W. 6 as to the discussions they had. Nonetheless, at about midnight according to P.W. 6 both the accused persons had once again come and assaulted him and Puran Chik Baraik. It was a winter night and the extent of cold can be fathomed from the fact that both P.W. 6 and the deceased had covered themselves with four blankets and P.W. 6 had covered himself with blankets from head to foot partly due to the cold and partly due to the presence of mosquitoes. It was a dark night and when the accused had come for the first time, they were identified by the P.W. 6 from the light of the torch. However, during the subsequent attack by the assailants, P.W. 6 had not disclosed the source of such identification. Moreover, P.W. 6 has also stated that when he managed to flee away, the accused could not see him due to the darkness. He has also stated that he had not seen the accused persons, when they had come to commit assault upon him and the deceased. The other notable factor is the age of P.W. 6 which is about 60 years and his non-wearing of power glasses due to his poor financial condition. P.W. 6 therefore, cannot be said to be a reliable witness so far as the identification of the appellant as one of the assailants is concerned. The other noticeable feature is the evidence of P.W. 8, who had conducted post mortem on the dead body of the deceased. The injuries sustained by the deceased was a lacerated wound over face with brain matter coming out through the fractured face. In the fard beyan, the assault upon Puran Chik Baraik was said to have been caused by farsa though in his evidence P.W. 6 has stated about the assault committed with a dauli and knife. P.W. 8 in his cross-examination has categorically

stated that such injury cannot be caused by sharp cutting weapon like a big knife. The evidence of P.W. 6 is therefore not corroborated by the medical evidence.

P.W. 6 has also claimed to have sustained injuries on account of the assault committed upon him with a dauli. The assault was committed in the midnight of 12.02.2013. He was examined on the next day i.e. on 13.02.2013 by P.W. 11 who has opined that the age of injury was within one hour. The injuries which could be self inflicted also negates the assertion of P.W. 6 because of the age of the injuries.

9. There also does not appear to be any motive as P.W. 6 has categorically stated that the land between Puran Chik Baraik and the appellant were already partitioned and both were cultivating their own lands.

10. What would thus fall from the above is that in the backdrop of the apparent inconsistencies and contradictions, the evidence of P.W. 6 cannot at all be considered to be reliable and trustworthy and such aspects having not been appreciated by the learned trial court, we have no hesitation to come to a conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubt and resultantly, we set aside the impugned judgment of conviction dated 08.12.2015 and order of sentence dated 09.12.2015 passed by Sri Shyam Lal Saroj, learned District and Additional Sessions Judge I, Gumla in S. T. No. 204 of 2013.

11. Since the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case. This appeal is allowed.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.) Jharkhand High Court at Ranchi The 10th day of November, 2022 R.Shekhar/NAFR/Cp.3