Mashi Bhengra vs The State Of Bihar Now Jharkhand
2022 Latest Caselaw 3630 Jhar

            Cr. Appeal (DB) No. 189 of 1994 R
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Against the judgment of conviction dated 28.11.1994 and order of sentence dated 1.12.1994, passed by Smt. Shakuntala Sinha, learned Additional Judicial Commissioner, Khunti in S.T. No. 618 of 1992/T.R. No. 264 of 1993.

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1. Mashi Bhengra.

2. Markas Bhengra.

3. Sunil Bhengra.

4. Navin Bhengra.

5. Berkan Bhengra.

6.    Sanika Bhengra.                      .....Appellants
                                Versus
The State of Bihar Now Jharkhand.          ....Respondent

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For the Appellants   : Mr. Arun Kumar, Advocate
For the State        : Mr. Vishwanath Roy, A.P.P.
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                     PRESENT
       HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
          HON'BLE MR. JUSTICE AMBUJ NATH

C.A.V. On 17.08.2022                             Pronounced on 12/09/2022

Heard Mr. Arun Kumar, learned counsel for the appellants and Mr. Vishwanath Roy, learned A.P.P.

2. Since the appellant Nos. 4 and 6 had died during the pendency of this appeal, the same stood abated as against the appellant nos. 4 and 6 vide order dated 29.04.2019. This appeal is, therefore, now restricted to the appellant nos. 1, 2, 3 and 5.

3. This appeal is directed against the judgment of conviction dated 28.11.1994 and order of sentence dated 1.12.1994, passed by Smt. Shakuntala Sinha, learned Additional Judicial Commissioner, Khunti in S.T. No. 618 of 1992/T.R. No. 264 of 1993, whereby and whereunder the appellants have been convicted for the offence punishable under section 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life.

4. The fardbeyan of Md. Jibrail Ansari was recorded on 22.4.1992, in which it has been stated that on 21.4.1992, his brother Md. Naushad Ansari had gone to the house of Sanika Bhengra. Since it had become dark and his brother did not return, he along with his cousin-Tabrek Alam had gone to village-Okra- Kandure in search of his brother. It was about 8 P.M. when he had seen some villagers namely Navin Bhengra, Masih Bhengra, Markus Bhengra, Albis Purty, Sunil Bhengra, Pandru Bhengra, Berkan Bhengra, Sanika Bhengra and others, who were armed with Axe, Balua and Lathi assaulting his brother. The informant out of fear hid himself. It has been alleged that when the accused persons left after the assault, the informant came out and saw his brother lying dead. He 2 Cr.Appeal ( D.B.). No. 189 of 1994R.

went back to the village and disclosed about the incident to others. Since it was night, he could not go to the police station.

5. Based on the aforesaid allegations, Torpa P.S. Case No.27 of 1992 was instituted for the offences punishable under sections 147, 148, 149, 302 of Indian Penal Code against eight named accused persons. On conclusion of investigation, chargesheet was submitted, after which cognizance was taken and thereafter the case was committed to the Court of Sessions where it was registered as S.T. No. 618 of 1992. Charge was framed against the accused persons for the offence punishable under sections 302/149 IPC, which was read over and explained to them in Hindi, to which they pleaded not guilty and claimed to be tried.

6. The prosecution has examined as many as four witnesses in support of its case.

P.W-1-Dr.Vijay Kumar Prasad has deposed that on 22.4.1992, he had conducted autopsy on the dead body of Md. Naushad and had found the following injuries:-

(i) Round lacerated injury 2"x 1/2 1" 2 1/2" above right ear on right parietal bone with fracture of parictal bone and brain matter was lacerated.

(ii) Round lacerated injury 2"x 1 1/2 "x 1 1/2" on upper part of occipital bone with fracture of occipital bone and laceration of brain matter.

(iii) Round lacerated injury 2" x 1 ½ " x 1 1/2" on left side of upper lip.

(iv) Sharp cut injury 3" x1/2 " x ½" on right side of frontal bone.

(v) Round lacerated injury 2"x 1 ½" x 1 ½" on left side of nose with fracture of nasal bone.

(vi) Round lacerated injury 2" 1 ½ " x ½ " on left chest.

(vii) Lacerated injury 2"x 1 ½" x 1 ½ " on left arm 3" below left elbow.

(viii) Crushed injury of both testicles.

Injury Nos. (i)(ii)(iii)(v) (vi) and (vii) were caused by heavy pointed round weapon while injury no. (iv) was caused by sharp cutting weapon may be by tangi. Injury No. (viii) was caused by heavy weight and pressure. The cause of death was opined to be on account of the impact of all the injuries and shock and hemorrhage. The postmortem report has been proved by this witness, which has been marked as Ext-1.

P.W-2-Shamsuddin Ansari has proved his signature in the inquest report and seizure list, which has been marked as Exts-2 and 3, respectively.

P.W-3-Md. Jibrail Ansari is the informant of the case, who has deposed that on 21.4.1992 at about 5 P.M., his brother Md. Naushad Ansari for the 3 Cr.Appeal ( D.B.). No. 189 of 1994R.

purpose of his business had left for the house of Sanika Hembrom at Okra Kandure. When he did not return back, this witness at 7.30 P.M., went in search of his brother along with his cousin brother Md. Tabrek. When he reached village- Okra Kandure, he saw Navin, Sanika, Masih, Sunil, Albis Purty, Berkan Bhengra, Pandru Bhengra and Markus Bhengra assaulting his brother with lathi, tangi, dauli and Bahangi. The entire incident was witnessed in the light of the torch, which was in possession of Sanika Bhengra. He has stated that after assaulting his brother, all the accused persons went home and when this witness reached near his brother, he found him dead. He therefore returned home while the dead body of his brother was left lying at the place of occurrence. On 22.4.1992, his fardbeyan was recorded at village-Okra Kandure. He has identified his signature in the fardbeyan, which has been marked as Ext-4. He has further stated that the cousin brother who had accompanied him to the place of occurrence is now no more.

In cross-examination, he has deposed that all the accused persons are known to him from childhood. His entire family for generations is involved in the leather business. He has also stated that there was never any enmity between the accused persons and his family members. However, about two months prior to the incident, his brother had disclosed that some villagers of Kandure had threatened him of doing away with his life. He has deposed that he and his cousin brother had gone on foot in search of Md. Naushad Ansari. Adjacent to the place of occurrence are the houses of Navin Bhengra, Nikodin, Suleman, Nikhail and Mangra Bhengra. He however had not met these persons on the date of occurrence. He had witnessed the occurrence from a distance of about twenty yards. He has further stated that the assault had already started and he had watched the entire incident from behind a "Pipal" tree. He had seen the incident for half an hour. Sanika had a lathi on one hand and a torch on the other though he was not involved in the assault. He was flashing the torch light near the place of occurrence. He has stated that the bicycle of his brother was at the place of occurrence, which was handed over to him by the police. He and his brother had returned back home after witnessing the incident.

P.W-4-Shiv Mangal Ram has proved the fardbeyan, which has been marked as Ext-5 and the formal FIR, which has been marked as Ext-6.

The statement of the accused persons were recorded under section 313 Cr.P.C., in which they have denied their involvement in the occurrence.

The defence has examined two witnesses in support of its case. D.W-1-Martin Purty is the father of the accused-Albis Purty, who according to this witness, is aged 16 years.

D.W-2-Phanu Munda has deposed that the accused Pandu Bhengra is 4 Cr.Appeal ( D.B.). No. 189 of 1994R.

his youngest son, who is aged about 13 years.

7. It has been submitted by Mr. Arun Kumar, learned counsel for the appellants, that there is no evidence worth mentioning, which would point to the involvement of the appellants in the murder. According to him, in absence of any corroborative evidence, the version of P.W-3 cannot be said to be reliable and trustworthy. The conduct of P.W-3 has also been highlighted by the learned counsel for the appellants. He has stated that no independent witnesses have been examined though according to P.W-3 there were several houses in the vicinity of the place of occurrence, which was not a secluded place. Learned counsel has further submitted that the Investigating Officer of the case has not been examined, which has caused prejudice to the defence.

8. Mr. Vishwanath Roy, learned A.P.P., has submitted that the credibility of the evidence of P.W-3 gains strength from the postmortem report, which corroborates the manner of assault upon the brother of the informant. The evidence of P.W-3 cannot be discarded merely because he is a solitary eye witness as his evidence peppered up with the surrounding circumstances does evoke confidence.

9. We have considered the rival submissions and have also perused the Lower Court Records.

10. The gist of the allegations reveals about an assault committed by the accused upon the brother of P.W-3 leading to his death. The incident is said to have been witnessed by the informant and his cousin brother. The cousin brother of the informant had died during the trial and therefore the entire case of the prosecution hinges upon the evidence of P.W-3. The evidence of a solitary eye witness can lead to a conviction if the same is not tainted with improvements and falsity. At the same time, the Court has to be circumspect while dissecting such evidence in coming to a just decision.

11. The evidence of P.W-3 reveals that when his brother Md. Naushad Ansari did not come back from Okra Kandure, he along with his cousin brother went in search of Md. Naushad Ansari and on entering the village had seen from the light emanating from a torch in the possession of Sanika Bhengra, the assault being committed upon his brother. Admittedly, he did not raise any alarm. He did not flee away either but continued to watch the assault from behind a "Pipal" tree. He also did not send his cousin brother for seeking help. After the assault, when the accused persons went away, P.W-3 emerged from behind the "Pipal" tree, went to where his brother was lying and found him dead. As per P.W-3, there were several houses near the place of occurrence, which is at the centre of the village but he neither raised any alarm at the time of the incident nor after the incident and instead he left the place of occurrence and went back to his 5 Cr.Appeal ( D.B.). No. 189 of 1994R.

house along with his cousin brother while Md. Naushad Ansari lay dead at the place of occurrence. On the next day, the police was informed after which the fardbeyan was recorded of P.W-3. In the fardbeyan, P.W-3 had stated about informing the villagers about the incident but in course of his deposition, he has not whispered about such act, rather it seems that he straight away came back home and the process of informing the police and the other factors were initiated on the next day.

12. The entire sequence of events, noted above, seems to suggest the lackadaisical and absolute non-chalant conduct of P.W-3. His evidence seems to suggest that he was a mute spectator to the assault and even in the aftermath of the assault his demonor remained casual, which makes his evidence highly suspicious. His own brother was murdered but he returned back home while the dead body of his brother lay under the open sky the entire night. Even on return, he did not disclose about the incident to anyone. This conduct of P.W-3 is in complete contrast to a natural human conduct and that's what makes his evidence pregnant with doubt.

13. Apart from the conduct of P.W-3 the other aspects relevant are the absence of any independent witness though the incident had occurred at the centre of the village. The Investigating Officer has not been examined and even the identification of the appellants by P.W-3 is also fraught with doubt.

14. The inimical terms between both the sides leading to their false implication seems to have been consistently harped by the accused persons in their statement under section 313 Cr.P.C. P.W-3 has stated about a case of arson having been instituted against him and Ext-A filed on behalf of the defence shows that the present case was lodged just prior to the case of arson but in the case against P.W-3, chargesheet has been submitted.

15. The learned trial court has relied upon the evidence of P.W-3 while convicting the appellants but has not appreciated the conduct of P.W-3 and the other facets of the case highlighted above and on such consideration, we have no hesitation to come to a conclusion that the prosecution has miserably failed to prove its case against the appellants.

16. As a consequence to the above, this appeal is allowed and the judgement of conviction dated 28.11.1994 and order of sentence dated 1.12.1994, passed by Smt. Shakuntala Sinha, learned Additional Judicial Commissioner, Khunti in S.T. No. 618 of 1992/T.R. No. 264 of 1993, whereby and whereunder the appellants have been convicted for the offence punishable under section 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life, are hereby set aside.

6 Cr.Appeal ( D.B.). No. 189 of 1994R.

17. Since the appellants are on bail, they are discharged from the liability of their bail bonds.

18. Pending I.A.s, if any, stand disposed of.

(Rongon Mukhopadhyay,J)

(Ambuj Nath, J) Jharkhand High Court, Ranchi Dated 12th September, 2022 Rakesh/NAFR