Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 930 (PAT)

Gopin Soren v. State Of Bihar

2000-07-28

M.L.VISA, NARAYAN ROY

body2000
Judgment Narayan Roy and M.L.Visa JJ. 1. We have heard counsel for the parties. 2. The sole appellant Gopin Soren has been found guilty for committing murder of his own brother Munshi Soren and he has been sentenced to undergo R.I. for life. 3. The prosecution case, briefly stated is that the deceased Munshi Soren and the accused Gopin Soren are full brothers and they were separate in residence. The accused Gopin Soren constructed house over ancestral lands in which deceased Munshi Soren was claiming share. The deceased Munshi Soren has constructed his separate house on other land and he was living there along with his wife Mariyam Murmu. In the F.I.R. marked Ext. 1/1 it has been disclosed that on 30.11.91 at about 4 P.M. the accused Gopin Soren took the deceased Munshi Soren to his house and when deceased Munshi Soren went to the house of the accused he was badly assaulted by the accused Gopin Soren and due to assault deceased Munshi Soren died on the spot. The cause of occurrence is said to be land dispute regarding ancestral homestead land over which the accused has contructed his house. The dead body of deceased Munshi Soren was found in the courtyard of the house of accused Gopin Soren. When informant Mariyam Murmu, on information, went to the house of accused, she fould her husband Munshi Soren lying senseless in injured condition in the court yard of the house of accused Gopin Soren. The deceased Munshi Soren died on the courtyard of the accused and then the informant along with other villagers informed the Chowkidar and the villagers also caught the accused and handed over to Chowkidar. 4. On the next day i.e. on 1.12.1991 the informant Mariam Murmu, wife of the deceased lodged a Fardbeyan with the police and accordingly a case under section 302 of the I.P C. was instituted. Thereafter, police went on the place of occurrence and prepared the inquest report and sent the dead body to Dumka hospital for autopsy. 5. After due investigation, char-gesheet was submitted under section 302 of the I.PC. against the appellant and after due process of law, the case was committed to the court of Sessions where the appellant was tried and he was found guilty. 6. The defence of the appellant is plea of innocence. 5. After due investigation, char-gesheet was submitted under section 302 of the I.PC. against the appellant and after due process of law, the case was committed to the court of Sessions where the appellant was tried and he was found guilty. 6. The defence of the appellant is plea of innocence. The specific defence was also taken by the appellant that the deceased had fallen down on the ground from roof of the house in course of plucking Kohra and due to fall, he received injuries and on account of land dispute, the appellant has falsely been implicated in this case. 7. The prosecution, in all, examined 8 witnesses, out of them, P.W. 5 Mariam Murmu is the informant, P.W. 1 Hopna Hansda is the village Pradhan, P.W. 2 is Sunilal Soren, a hear say witness. Likewise P.W. 3 Syamlal Murmu is another hear-say witness before whom appellant is alleged to have confessed his guilt. P.W. 4 Malti Soren is also a hearsay witness. P.W. 6 has been tendered. P.W. 7 is a police officer who has only proved case diary and inquest report. P.W. 8 Sushil Marandi is a Civil Assistant Surgeon who held autopsy over the dead body. 8. P.W. 5 Mariam Murmu is the wife of the deceased and informant of this case. She in her evidence has stated that on 30th November, 1991 at about 4 P.M. while she was in her house, the appellant came there and took her husband, the deceased to his house and about 5.30 P.M. P.W. 1 Hopna Hansda came to her house and informed her that her husband has died in the courtyard of the appellant Gopin Soren. Thereafter she went to the place of occurrence along with Hopna Hansda (P.W. 1) and her brother (not examined) and there she found her husband senseless in the courtyard of Gopin Soren and after some time her husband died there. She has further stated in her evidence that when she had gone to the house of Gopin Soren, he was not there and she went to the village chowkidar and she apprised village chowkidar of the occurrence. Chowkidar came to the place of occurrence with her and took away Gopin Soren. This witness, in her cross examination, remained candid in saying her earlier version. Chowkidar came to the place of occurrence with her and took away Gopin Soren. This witness, in her cross examination, remained candid in saying her earlier version. However, from her evidence it is manifest that she is not the eye-witness of the occurrence and she had gone to the place of occurrence and had seen her husband dead only on information given by P.W. 1 Hopna Hansda. 9. P.W. 1 Hopna Hansda, in his evidence, has stated that on the fateful day i.e. 30th November, 1991 at about 5 P.M. in the evening while he was in his house, the appellant Gopin Soren came there and informed him that a quarrel took place in between him and his brother deceased. The appellant Gopin Soren further asked him to go to his house. He accordingly went to the house of the appellant along with him and there he saw the deceased Munshi Soren lying unconscious in a pool of blood. He immediately thereafter called the village chowkidar and there Gopin Soren, the appellant confessed before him that his brother the deceased had climbed the roof of the house for plucking Kohra fruit and for that he assaulted him and threw him on the ground. He was further stated in his evidence that the chowkidar took Gopin Soren up to Karma Mor and he also followed them. In the night he stayed there with the chowkidar and Gopin Soren and in the morning went to the police station along with the wife of deceased P.W. 5. In his cross-examination, this witness has stated that on hearing about the occurrence, firstly he went to the place of occurrence and thereafter he went to the Naihar of P.W. 5 Mariam Murmu and he called her and only thereafter the went to the place of occurrence and had seen her husband lying in the courtyard of the ap-pellant. in clear terms this witness has stated in his cross-examination that Gopin Soren had come to him and had narrated that a quarrel had taken place and requested him to go to see the place of occurrence. At the same time this witness has furthet stated in his cross examination that he called the Chowkidar and Chowkidar came to the place of occurrence and he went away with the appellant. 10. At the same time this witness has furthet stated in his cross examination that he called the Chowkidar and Chowkidar came to the place of occurrence and he went away with the appellant. 10. From the evidence of P.W. 1 it would appear that he also is not an eye witness of the occurrence and is a witness on the point that the appellant had confessed his guilt before him and he had seen the deceased lying dead in the courtyard of the appellant. It would also appear from his evidence that at the time of occurrence the wife of the deceased was not in her house rather she was in her mothers house wherefrom she was called by him. P.W. 2 is also a hear say witness and in his evidence he has stated that on the fateful day while he was in his house Hopna Hansda P.W. 1 took him to the house of the appellant Gopin Soren where he saw the deceased lying in pool of blood. He has also stated in his evidence that at the place of occurrence the appellant Gopin Soren had confessed before him that he had assaulted his brother, the deceased with a lathi and the lathi was shown to him. In cross-examination, this witness has stated that when he had gone to the house of appellant he had seen one piece of Kohra laying in the courtyard. 11. P.W. 3 Shyamlal Murmu is also a hear say witness. He, in his evidence, has stated that on the fateful day he knew about the occurrence from Hopna Hansda, P.W. 1 and Hopna Hansda asked him to go to the place of occurrence and accordingly he had gone to the place of occurrence and there he had seen the deceased lying in the courtyard of the appellant in pool of blood. This is also the evidence of this witness that at the place of occurrence the appellant has confessed his guilt saying that he had assaulted his brother with lathi as the deceased had plucked Kohra fruit from his roof. 12. P.W. 4 Malti Soren is also a hear say witness and she has also deposed on the line of P.W. 2 and 3. 13. P.W 7 police officer is formal witness as discussed above. 14. P.W. 8 is the doctor who held autopsy over the dead body. 12. P.W. 4 Malti Soren is also a hear say witness and she has also deposed on the line of P.W. 2 and 3. 13. P.W 7 police officer is formal witness as discussed above. 14. P.W. 8 is the doctor who held autopsy over the dead body. He in his evidence stated that he had found the following antemortem injuries on the person of the deceased : (I) Lecerated wound 3" x 1" bone deep over the left side of forehead, extending up to left eye. The left eye ball was absent. (II) Lecerated wound 4" x 1" bone deep over the right side of the forehead. Extending up to right ear. On disection of the scalp i.e. injury no. 1 and 2. There was depressed fracture of left frontal bone. On further dissection brain and meninges found lacerated and huge collection of blood found in the cranium. (III) Left ear lobule was chopped off. (IV) Incised wound 1 1/2" x 1/2" x 1/2" over the left side of the nose lobule extending up to left side of the upper lip. (V) Diffused swelling over the whole of the chest. On dissection there was fracture of the 3rd to 4th ribs of right side and fracture of 2nd and 3rd ribs of left side. On further dissection connecting plura and lungs found lacerated and huge collection of blood found in the thoracic cavity. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of injury nos. 1, 2 and 5 and in ordinary course the same was sufficient to cause death. 15 The Investigating Officer in this case has not been examined nor village chowkidar who, immediately after the occurrence, had gone to the place of occurrence and had taken the appellant in custody has been examined. 16. Learned counsel for the appellant submitted that there is no eye witness to the occurrence and it is a case of circumstantial evidence. Learned counsel further submitted that there are material contradictions in the evidence of the prosecution witnesses and they do not appear to be reliable witnesses. 17. It is true that there is no eye-witness to the occurrence and the entire case hinges upon the circumstantial evidence and also on the oral confession made by the appellant before P.Ws. 1, 2 and 3. 17. It is true that there is no eye-witness to the occurrence and the entire case hinges upon the circumstantial evidence and also on the oral confession made by the appellant before P.Ws. 1, 2 and 3. The evidence of P.W. 5, wife of the deceased, appears to be shaky in the sense that throughout in her evidence she has said that at the time of the occurrence she was in her house and the deceased was taken away by the appellant to his house. The testimony of P.W. 5, however, is not being corroborated by the evidence of P.Ws 1, 2 and 3. P.W. 1 Hopna Hansda, in categorical terms, has stated in his evidence that immediately after seeing the deceased in the house of the appellant he called the village chowkidar and at the same time he went to inform Mariam Murmu to her Naihar and wherefrom she came to the place of occurrence along with him. The evidence of P.W. 5, in that view of the matter, does not appear to be reliable and she had merely heard about the occurrence after wards by P.W. 1 and the deceased; her husband, was not taken away by the appellant in her presence. 18. From the evidence on record it appears that the deceased had suffered multiple injuries both lacerated and incised and his left eye ball was also found missing. The motive as disclosed by the prosecution appears to be a question of plucking of Kohra from the roof of the appellant. It has come in evidence that the high and it was only five feet in height. Even assuming that he was pushed on the ground by the appellant, such injuries could not have been caused on his person. So far the oral confession of the appellant is concerned, P.Ws. 1, 2 and 3 have stated in their evidence about the same where the appellant had confessed that he had assaulted his brother with lathi as he had plucked Khora fruit from his roof. There is nothing in evidence to show that the extra judicial confession made by the appellant was reduced in writing in presence of the witnesses showing that some other weapon was used besides lathi in causing injuries on the person of the deceased. There is nothing in evidence to show that the extra judicial confession made by the appellant was reduced in writing in presence of the witnesses showing that some other weapon was used besides lathi in causing injuries on the person of the deceased. The oral confession made by the appellant, however, remains unexplained in view of the evidence of doctor P.W. 8 who had found as many as five injuries on the person of the deceased both lacerated and incised. 19. Since the Investigating Officer of the case has not been examined, the prosecution has not even proved the place of occurrence, the evidence adduced by the prosecution, thus do not appear to be reliable and it would be difficult to sustain the impugned judgment holding the appellant guilty for an offence under section 302 of the I.P.C. Seeing the evidence of the doctor, it appears that the occurrence had taken place in some other manner and not in the manner as disclosed by the prosecution. 20. In the result, this appeal is allowed and the impugned judgment and order of conviction and sentence passed against the appellant Gopin Soren is set aside. The appellant is acquitted of the charges levelled against him. The appellant is in custody. He is therefore, directed to be released forthwith if not required in any other case.