CRIMINAL APPEAL (DB) NO. 435 OF 2003
Against the judgment of conviction and order of sentence dated
4.2.2003 and 7.2.2003 respectively passed by Shri Awadhesh
Nandan, Additional Sessions Judge, Fast Track Court No. 1 ,
Palamau at Daltonganj in Sessions Trial No. 485 of 1998.
Sukat Bhuiya @ Rameshwar Bhuiya -----------Appellant
The State of Jharkhand -----------Respondent
For the Appellant: Mr. A.K. Kashyap, Sr. Advocate
Ms. Lina Shakti
For the State: Mr. V.S. Jha, APP
PRESENT
HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
HON'BLE MR. JUSTICE PRASHANT KUMAR
By Court: Sole appellant Sukat Bhuiya @ Rameshwar Bhuiya has filed
this appeal challenging the judgment of conviction and order of sentence
dated 4.2.2003 and 7.2.2003 respectively passed by Additional Sessions
Judge, FTC-1, Palamau at Daltonganj in S. T. No. 485 of 1998 whereby
and whereunder he was convicted under section 302 of the IPC and
sentenced to undergo imprisonment for life.
2. The case of prosecution, in short, as per the fardbeyan of
P.W. 1, is that in the evening of 3.8.1997 at about 5 p.m. she along with her
husband was sitting at their door. The appellant Sukat Bhuiya @
Rameshwar Bhuiya alongwith Raju Pandey and Suresh Bhuiya came
armed with tangi (axe). They caught hold of her husband and took away
abusing and alleging him involved in black magic practice ( OJHAI). It was
further alleged that they had assaulted her husband with the wooden part of
Tangi ( axe) and behind the house of Janeshar and Bhageshar they
pushed him on the ground and severed his head by inflicting tangi blow on
his neck. The informant had followed the accused persons while they were
taking away her husband and witnessed the occurrence. After finishing her
husband, the accused persons fled away. She raised alarm but no body
was there to listen her, as that was the day of Aashehar bazaar and the
villagers had gone for marketing.
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3. On the basis of aforesaid fardbeyan, the police instituted Panki
P.S. Case No. 24 of 1997 dated 4.8.1997 under section 302/34 of the IPC
and took up investigation. After completion of investigation, police submitted
charge sheet against the appellant under section 302/34 of the IPC showing
co-accused Raju Pandey and Suresh Bhuiya as absconder. Cognizance of
the offence was taken and the case was committed to the court of sessions
as the offence is exclusively triable by the court of sessions.
4. The charge was framed against the appellant under section
302/34 of the IPC and the same was read over and explained to him to
which he pleaded not guilty and claimed to be tried.
5. Prosecution had examined altogether four witnesses in support
of its case. The statement of accused was recorded under section 313
Cr.P.C. in which his defence is of total denial. The defence had also
examined one witness in support of its case.
6. The court below in conclusion of trial convicted and sentenced
the appellant as aforesaid.
7. Mr. A.K. Kashyap learned senior counsel for the appellant
urged that in the instance case, the unexplained delay of three days in
sending the FIR to the court of CJM casts a serious doubt in the
correctness of the FIR, particularly the time and date of its recording. It
goes to show that name of this appellant had been introduced in the case
subsequently on due deliberation. He further submitted that though
independent witnesses were present but they have not been examined.
P.W. 2 is not named in the FIR as an eye witness of the occurrence and
therefore the claim of P.W. 2 that she witnessed the occurrence cannot be
believed. It is further submitted that the evidence of P.W. 1 is not wholly
reliable and acceptable and therefore her sole testimony cannot be the
basis for convicting the appellant. Learned court below wrongly convicted
and sentenced the appellant by the impugned judgment. The same cannot
sustain in law.
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8. On the other hand, learned Additional P.P., appearing for the
State, submitted that the evidence of P.W. 1 and 2, who are the eye
witnesses of the occurrence, is wholly reliable and free from any infirmity. It
is not necessary that each and every fact be incorporated in the FIR. Only
because the name of P.W. 2 does not find place in the FIR, her evidence
cannot be discarded and/or excluded from the arena of consideration. He
further submitted that it is true that the FIR was received in the court of
Chief Judicial Magistrate on 7.8.1997 i.e. after three days of institution of
FIR but that by itself does not go to suggest false implication. He submitted
that the inquest was prepared on 4.8.1997 and in the said inquest report;
the P.S. case number was mentioned. The defence had not brought
anything on record to show that the P.W. 1 or 2 had any personal grudge
against the appellant to falsely implicate him. No suggestion was given to
these witnesses that the FIR was lodged later on with a view to falsely
implicate the appellant. The delay in sending the FIR to the magistrate,
thus, is not a material factor and it can be ignored. He submitted that in the
FIR itself, it is mentioned that though the informant had raised alarm non
had turned up as the day of occurrence was a market day and the villagers
had gone to market. There was no other person available to witness the
occurrence. Under the said circumstance there was no independent eye
witness who could have be examined by the prosecution. There is no
illegality and/or infirmities in the judgment of court below warranting
interference by this court.
9. Having heard the submission, we have gone through the
record of the case. P.W. 3 is the doctor who conducted the P.M.
examination on the dead body of Kailash Bhuiya and found that the neck of
the deceased was cut and the head was completely separated from the rest
of the body. The doctor opined that the injury was ante mortem in nature
and caused by heavy sharp cutting weapon such as tangi. The doctor also
opined that the death was caused due to haemorrhage and shock due to
the above mentioned injury. There is nothing in the cross examination of
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this witness to disbelieve his testimony Thus, by the said medical evidence
the prosecution has proved that the deceased Kailash Bhuiya died because
his head was cut and severed from the rest of his body by inflicting injury
from a heavy sharp cutting weapon.
10. Now the question remains to be decided as to whether the
appellant was the author of the said crime ? P.W. 1 (informant) and P.W. 2
(daughter of informant) had claimed themselves to be the eye witnesses of
the occurrence. Both the aforesaid witnesses had stated that on the date of
occurrence in the evening at 5 p.m. they were sitting at their door alongwith
the deceased. At that time the appellant along with Suresh Bhuiya and Raju
Pandey arrived with tangi in their hands and they caught hold of the
deceased and dragged him on the village road. Witnesses further stated
that they followed them and witnessed the accused persons thrashing and
pushing him on the ground and giving heavy tangi blow on the neck of the
deceased and severing his head from the body. From perusal of cross
examination of these witnesses, we find that their evidence remains intact
and the defence could not elicit anything on which their evidence can be
discarded.
11. The submission of learned counsel for the appellant that the
evidence of P.W. 2 be excluded from the arena of consideration, because
she was not named in the FIR as an eye witness is not aceptable. It is well
settled that FIR is not the encyclopedia of entire prosecution case. Even if
some important fact is not mentioned in the FIR, the same can not be a
ground to exclude it from consideration. The said fact can be considered
with other evidence for coming to a right conclusion. Only because P.W. 2
has not been named in the FIR as an eye witness, in our view, her evidence
cannot be discarded. Moreover, from perusal of cross examination of P.W.
2, we find that the defence had not challenged her presence at the place of
occurrence. Even no suggestion was given to this witness that she was not
present at the place of occurrence or she had not witnessed the
occurrence. Under the aforesaid circumstance, we find that the evidence of
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P.W. 2 remained unchallenged and, therefore, there is no ground to
exclude her evidence from the arena of consideration.
12. Now, coming to the next submission of learned counsel for the
appellant that no independent witness was examined by the prosecution, it
is relevant to mention that the informant P.W. 1 categorically stated that
though she raised alarm, none had come as the persons residing in the
locality were not present. P.W. 2 had also stated that except them no other
person arrived at the place of occurrence, even after raising alarm by them.
Under the aforesaid circumstance, in our view, non examination of any
independent witness, is not an infirmity in the instant case. It is submitted
that even the witnesses in whose presence fardbeyan was recorded, had
not been examined. In our view, since the aforesaid two witnesses had not
seen the occurrence, therefore, non examination of those witnesses have
no fatal consequence. It is well settled that it is not necessary to examine all
the witnesses. It is the quality not the quantity of evidence that matters.
Reference in this connection may be made to a decision of Hon’ble
Supreme Court in Sarwan Singh and others Vs, State of Punjab
reported in AIR 1976 SC 2304.
13. The next contention of learned counsel for the appellant that
there is inordinate delay in sending the FIR in the court of magistrate and
there is reasonable doubt of false implication of the appellant after due
deliberation is also not acceptable. From the perusal of record, we find that
the defence has not brought anything on record to show that P.W. 1 and 2
have any malice to falsely implicate the appellant. Even no suggestion was
given to P.W. 1 (informant) that the FIR was lodged later on with a view to
falsely implicate the appellant. We, further find that the inquest report was
prepared by the I.O. on 4.8.1997 just after the recording of fardbeyan and in
the said inquest report; the P.S. number of the case was mentioned. In the
inquest report the cause of death was also mentioned. The decision of the
Apex Court in Thanedar Singh Vs. State of M.P. reported in (2002) 1
SC 487 has no application to the facts of this case. In the aforesaid decision
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number of FIR and crime number were not mentioned in the inquest report,
whereas in this case P.S. number was given in the inquest report. In that
case specific suggestion was given to the witnesses that the FIR was
prepared after 2 or 3 days of the occurrence, but in the instant case no such
suggestion was given to any witness. Under the said circumstance the law
laid down in the aforesaid case is not applicable in this case. It has been
held by the Supreme Court in Sarwan Singh and others Vs, State of
Punjab reported in AIR 1976 SC 2304 that delay in dispatch of FIR to a
magistrate is not a circumstance to throw out the prosecution case in its
entirety.
14. As noticed above, we find that the evidence of P.W. 1 and 2
is trustworthy and acceptable. There is nothing in their evidence on which
their credibility can be impeached. The presence of these witnesses, at the
place of occurrence, has not been challenged by the defence. Their
evidence further finds full corroboration from the medical evidence. There is
nothing on record to show that the aforesaid two witnesses have any
personal grudge and/or enmity to falsely implicate the appellant. In that
view, delay in dispatching the FIR to the magistrate has no impact on the
case of prosecution.
15. We, accordingly, come to the conclusion that the prosecution
has been able to establish the charge leveled against the appellant beyond
the shadow of all reasonable doubt and he has been rightly convicted by
learned court below. There is no illegality and/or infirmities in the impugned
judgment warranting any interference by this Court.
16. In the result, this appeal fails and is accordingly, dismissed.
(Narendra Nath Tiwari, J.)
(Prashant Kumar, J.)
Jharkhand High Court, Ranchi
Dated 14 /05 /2009
Sharda/NAFR