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2003 DIGILAW 1376 (JHR)

Sadho Deogam v. State of Bihar (Now Jharkhand)

2003-12-11

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2003
Judgment Lakshman Uraon, J.- This appeal is directed against the judgment and order of conviction and sentence dated 5th August, 1997, passed by Sri Philip Topno, learned District & Sessions Judge, Singhbhum West at Chaibasa, in Sessions Trial No. 394 of 1996, whereby and whereunder, the sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code as also under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for five years for the offence under Section 27 of the Arms Act. However, both the sentences have been ordered to run concurrently. 2. The prosecution case is based on the Fard-beyan (Ext. 3) of the informant Suru Kui (PW 6), recorded on 29.8.1996 at 2.15 a.m. by S. K. Pathak, S.I., Mofassil Police Station, at Gunabasa in the house of Munna Deogam. The informant has alleged that on 28.8.1996 the villagers were celebrating Raksha Bandhan festival. At about 11.00 p.m. the informant and her mother were taking food and drinks. At that time, appellant Sadho Deogam came there and demanded Haria. The mother of the informant refused to provide the same, as it was too late at night. Sadho Deogam then Dpened fire with his pistol, causing injury on the head of Palo Kui, who fell down and died instantaneously. 3. The prosecution has examined altogether eight witnesses in support of its case. Out of them, PW 1 Budhan Singh Deogam has deposed that at night he did not see Diku Deogam (PW 5), brother of the informant, at home when he went there. This witness was declared hostile. He was not informed by the informant as to who assaulted her mother to death. PW 2 Arjun Deogam is a seizure list witness in respect of the seized blood stained soil. PW 3 Ponda Deogam is a Village Munda, who has gone to the Police Station at that very night along with other villagers, where his statement was recorded on which he signed. He is a hearsay witness. PW 4 is Dr. Jawahar Khan, who has conducted autopsy on the dead body of Palo Kui and Ext. 2 is the Post Mortem Report. He is a hearsay witness. PW 4 is Dr. Jawahar Khan, who has conducted autopsy on the dead body of Palo Kui and Ext. 2 is the Post Mortem Report. PW-5 Diku Deogam, although claims to be the eye witness, but in the Fard-beyan his sister (the informant) has not mentioned his name as eye witness, present at home. PW 6 Suru Kui is the informant, claiming herself to be the eye witness. PW 7 Mata Deogam is the cousin brother of the informant, who had gone to the house of the informant on hearing the sound of firing. He also claims that at that very night he along with other villagers went to the Police Station where his statement was recorded, on which he signed. PW 8 Anirudh Pd. Sharma is the Investigating Officer of this case. 4. The learned Sessions Judge having relied on the evidence of PW 5 Diku Deogam and his sister Suru Kui (PW 6), coupled with the medical evidence of Dr. Jawahar Khan (PW 4), convicted the appellant for the offences under Section 302 of the Indian Penal Code and 27 of the Arms Act and sentenced him thereunder. 5. Assailing the judgment and order of conviction and sentence, passed by the learned Sessions Judge, learned counsel for the appellant has submitted that PW 3 Ponda Deogam and PW 7 Mata Deogam have deposed that they went to the house of the informant. PW 7 has further deposed that he came to know regarding the death of Palo Kui, as a result of firing. He along with Ponda Deogam (PW 3) went to the Police and made statements, which was recorded by the police, on which they signed, but the prosecution has suppressed that very First Information Report and has substituted the present Fard-beyan of the informant Suru Kui as First Information Report. The S.I. S. K. Pathak, who recorded the Fard-beyan of PW 6, Suru Kui, has not been examined by the prosecution, who is alleged to have recorded the Fard-beyan at the village itself at 2.15 a.m. in the night. There is no explanation as to how the S.I. SK Pathak went at night to the place of occurrence i.e. Village-Gunabasa and recorded the Fard-beyan at 2.15 a.m. regarding the occurrence, alleged to have taken place at 11.00 p.m. on 28.8.1996. There is no explanation as to how the S.I. SK Pathak went at night to the place of occurrence i.e. Village-Gunabasa and recorded the Fard-beyan at 2.15 a.m. regarding the occurrence, alleged to have taken place at 11.00 p.m. on 28.8.1996. The informant Suru Kui (PW 6) has deposed that her husband was at Village and so also PW 5 Diku Deogam has deposed that husband of the informant was present at home, but this fact was suppressed by the informant in her Fard-beyan, as there is no statement of Manki Kudoda, husband of the informant. PW 5 and PW 6 have suppressed the real fact by concealing that it was Manki Kudoda, who had grudge against the mother of the informant, as the informant had managed to flee away from her house and got married with Manki Kudoda of Village- Tangari but she was living in the house of her mother at Village-Gunabasa. Palo Kui, mother of the informant, when at night did not allow Manki Kudoda to meet his wife, PW 6 Suru Kui, then out of anger he opened fire with pistol, causing injury to his mother-in-law Palo Kui, resulting her death and fled away. But only to save Manki Kudoda, PW 5 and PW 6, who were 3.t home, have falsely implicated this appellant Sadhu Deogam, who is their own uncle. It is further submitted by the learned counsel for the appellant that earlier Suru kui, informant, fled away from her parents' louse and started living with Manki Kudoda, as his wife. Thereafter, again Suru Kui fled 3.way with another person as a result of which she had conceived pregnancy. A Panchayati was convened by the appellant, resulting false implication in the case by the informant, due to personal grudge. Diku Deogam (PW 5) has not been mentioned as eye witness but in court he has claimed himself to be the eye witness. Before the Investigating Officer (PW 8), he had stated that he was sleeping in another room whereas his Brother-in-law (Bahnoi) Manki Kudoda was at home and even in the morning when the police came he was present. It was submitted that the original version, which was stated at the Police Station at night has purposely been suppressed. Before the Investigating Officer (PW 8), he had stated that he was sleeping in another room whereas his Brother-in-law (Bahnoi) Manki Kudoda was at home and even in the morning when the police came he was present. It was submitted that the original version, which was stated at the Police Station at night has purposely been suppressed. PW 6 Suru Kui had never gone to the Police Station rather she has deposed that on the next day her statement was recorded meaning thereby at 6.15 a.m. her Fard-beyan was recorded but it was penned through and was made 2.15 a.m. in the Fard-beyan. The learned Sessions Judge has erroneously relied the evidence of PW 5 and PW 6 and has convicted this appellant. 6. Learned A.P.P. has submitted that it was Raksha Bandhan festival on 28.8.1996 and the informant Suru Kui (PW 6) was in the house of her mother Palo Kui (deceased) at Gunabasa. At 11.00 p.m. in the night, they were eating and drinking. At that time appellant Sadho Deogam went there and demanded Haria and on refusal by Palo Kui, he fired with pistol, causing injury on her head, who fell down and died. The doctor (PW-4) found wound of entry 3/ 4" x 1/2" through and through. Gun powder was present over the wound. There was blackening over the left eye. The second injury was exit wound measuring 5" x 2" x through and through with ragged margin and fracture of bone over back parietal skill at left side. The death was within 24 hours from the time of the post-mortem examination. He found Haria like substance present in her abdomen. The learned court below considered the evidence of PW 5 Diku Deogam and the eye witness Suru Kui (PW 6) and has rightly convicted and sentenced the appellant thereunder. 7. The alleged occurrence took place at about 11.00 p.m. in the night on 28.8.1996 in the house of the deceased Palo Kui as per the Fard-beyan (Ext. 3) of the informant. There was none except PW 6 Suru Kui and her mother (deceased). At 11.00 p.m. appellant Sadho Deogam, uncle of the informant, went there and demanded Haria and on refusal, he fired causing injury on the head of her mother Palo Jui, -who fell down and died. 3) of the informant. There was none except PW 6 Suru Kui and her mother (deceased). At 11.00 p.m. appellant Sadho Deogam, uncle of the informant, went there and demanded Haria and on refusal, he fired causing injury on the head of her mother Palo Jui, -who fell down and died. Her statement was recorded by the police on the next day on which she gave her L.T.I. She has admitted that she had fled away from her parent's house and went to Village- Tangari and remained with Manki Kudoda as his wife. She conceived through Manki Kudoda, which was aborted. She has denied that her husband Manki Kudoda was with her at Village Gunabasa. There are five rooms in her mother's house. At that time PW 5 Diku Deogam was near her mother but this statement was not made in her Fard-beyan by the informant. Half an hour prior to the alleged occurrence they have taken food but the doctor (PW 4) who conducted autopsy at 11.00 a.m. on 29.8.1996'iound no food rather the stomach was containing Haria like substance. He found wound of entry and wound of exit and the injury was blackening with gun powder, present over the wound. But the I.O. Anirudh Prasad Sharma (PW 8) in course of inspection of the P.O. room could not trace out the pellet. On the other hand, PW 5 and PW 6 were suggested that they threw the fired pellet found in the room only to save Manki Kudoda, who is the real assailant. At night the villagers went there to whom she narrated the entire occurrence but she has suppressed as to whether the villagers had gone to the police station to inform the police. On the other hand, PW 3 Ponda Deogam, who has also signed on the Fard-beyan had gone to the police station along with the villagers and PW 7 Mata Deogam. Both of them i.e. PW 3 and PW 7 are the hearsay witnesses. They were informed by the villagers that Palo Kui was murdered by appellant Sadhu Deogam. At about 11.30 p.m. they went to the police station and narrated the entire story, which was recorded by the S.1. on which they signed. They did not see PW 5 Diku Deogam at home even at night or in the morning. They were informed by the villagers that Palo Kui was murdered by appellant Sadhu Deogam. At about 11.30 p.m. they went to the police station and narrated the entire story, which was recorded by the S.1. on which they signed. They did not see PW 5 Diku Deogam at home even at night or in the morning. PW 7 Mata Deogam was not informed by anyone either by PW 5 or PW 6 as to who caused murder of Palo Kui. The original statements, given by these witnesses along with the villagers at the police station at night was suppressed by the prosecution. On the other hand the fact that S.K. Pathak went to village-Gunabasa, 10 Kms away from Mofassil Police Station and recorded the Fard-beyan of PW 6 Suru Kui has been doubted by saying that there is no evidence to show that how he was informed and went there at night. PW 8 Anirudh Prasad Sharma went to the P.O. village after receipt of the Fard-beyan of Suru Kui. PW 6 (the informant) has deposed that next day at about 7.00 to 8.00 a.m. the police went to the P.O. village where her Fard-beyan was recorded on which she gave her L.T.I. At that time there was none, except she and her brother PW 5 Diku Deogam. The villagers who had gone to her mother's house at night, hearing the sound of firing, were not informed about the alleged occurrence and the assailant by the informant. She has denied that next morning one pellet, found in the room, was thrown away by her only to conceal the real assailant. The independent village witnesses have not supported the prosecution case, as PW 1 Budhan Singh Deogam did not see either Suru Kui or her brother Diku Deogam at night at the P.O. house. PW 5 Diku Deogam, brother of the informant, claims to be the eye witness but as per the evidence of PW 8 Anirudh Prasad Sharma, he was simply sleeping in a room. The I.O. found three rooms in the house of deceased Palo Kui. PW 5 Diku Deogam has deposed that there were two rooms in his house whereas PW 6 Suru Kui has deposed that there are five rooms in the house of her mother. The I.O. found three rooms in the house of deceased Palo Kui. PW 5 Diku Deogam has deposed that there were two rooms in his house whereas PW 6 Suru Kui has deposed that there are five rooms in the house of her mother. The evidence of PW 5 that at 'that night-Manki Kudoda was at home and when the police went to the P.O. house then also he was present but his statement was not recorded by the police, also creates suspicion in the conduct of PW 5 and PW 6. PW 5 claims that at night and in the morning also he was present whose statement was recorded by the police but PW 3 and PW 7 did not see PW 5 Diku Deogam at home in the night as also in the morning. 8. When considered the evidence of the interested witnesses i.e. PW 5 and PW 6 I find that there is contradictory statements regarding the presence of Manki Kudoda at home. As per the statement of PW 6 Suru Kui her brother PW 5 Diku Deogam was not present when the alleged occurrence took place. Again she contradicts that at that time she and her brother Diku Deogam were with their mother Palo Kui (deceased). Had that been the fact, then Diku Deogam must have raised alarm and chased his uncle Sadho Deogam (appellant), who is alleged to be the assailant. At night the villagers, including PW 3 and PW 7, went there but they were not informed about the alleged occurrence and the informant had not disclosed the name of the assailant. PW 3 and PW 7 came to know that appellant Sadho Deogam had opened fire with pistol resulting injury on the head of Palo Kui, who fell down and died. They along with other villagers went to the police station, whose statements were recorded on which they signed but that First Information Report has been suppressed. PW 6 has deposed that in the next morning when police went to the P.O. village, her Fard-beyan was recorded. Meaning thereby it was recorded in between 7.00 to 8.00 a.m. as deposed by her. If these statements of PW 3, PW 6 and PW 7 are believed, then S.K.Pathak, who recorded the Fard-beyan of Suru Kui at 2.15 a.m. in the night of 28/29.8.1996 has no leg to stand. Meaning thereby it was recorded in between 7.00 to 8.00 a.m. as deposed by her. If these statements of PW 3, PW 6 and PW 7 are believed, then S.K.Pathak, who recorded the Fard-beyan of Suru Kui at 2.15 a.m. in the night of 28/29.8.1996 has no leg to stand. That is why there is overwriting on the digit 2', which has been made digit 6', showing that the Fard-beyan was recorded at 2.15 a.m. in the night. Only to suppress the real fact, S.I. S. K. Pathak has not been examined. Had he been examined, he would have revealed the real fact and the real assailant could have been brought to light. But knowingly the statements recorded at the police station at night itself were suppressed and subsequently Fard-beyan (Ext.3) alleged to have been recorded at 2.15 a.m. was brought on record. That is why the Fardbeyan does not mention the presence of either Diku Deogam (PW 5) or Manki Kudoda, husband of the informant, at the home. Although PW 5 and PW 6 admits that Manki Kudoda was at home in the night of the alleged occurrence but the prosecution is silent on this point as he was neither made a witness nor an accused nor any attempt was made to trace out the pellet which might have been fallen in the room itself, as the injury was from a very close range, causing blackening mark and gun powder near the wound. There was wound of exit also. The defence suggestion that the informant threw the pellet, found in the room, only to conceal the real assailt, who is her husband Manki Kudoda, because Palo Kudoda was not allowing Manki Kudoda to meet with her daughter Suru Kui at night, which provoked Manki Kudoda in opening fire with pistol, causing injury on the head of Palo Kui, resulting her death, seems to be the probable story. 9. When considered all the pros and cons and the evidence of the interested witnesses, I find that their evidence could not be corroborated by the independent village witnesses including the Village Munda Ponda Deogam (PW 3). The defence has genuinely created doubt in the prosecution case and, as such, the benefit of doubt must go to the appellant, who had got no enmity with the informant or the deceased. The defence has genuinely created doubt in the prosecution case and, as such, the benefit of doubt must go to the appellant, who had got no enmity with the informant or the deceased. The probable story that on refusal to provide Haria at night, he opened fire, causing injury on the head of Palo Kui, resulting her death, could not be corroborated by any of the witnesses. The learned Sessions Judge was misled in believing the statements of PW 5 and PW 6, when PW 5 is not the eye witness. 10. In the result, I find merit in this Criminal Appeal, which succeeds and is hereby allowed. The judgment and order of conviction and sentence dated 5.8.1997, passed by the learned District & Sessions Judge, Singhbhum West at Chaibasa, in Sessions Trial No. 394 of 1996, is hereby set aside. As the appellant is in custody, he is ordered to be released forthwith, if not required in any other case. S. J. Mukhopadhaya, J.-I agree.