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2003 DIGILAW 499 (JHR)

Mukhdeo Singh v. State of Bihar (Now Jharkhand)

2003-04-18

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
Judgment By Court.- The sole appellant named above has preferred this appeal against the impugned judgment and order dated 13.02.1990 passed in S.T. No. 62 of 1988 by Shri Philip Topno, 1st Additional Sessions Judge, Palamau whereby and whereunder appellant Mukhdeo Singh was found guilty for the offence under Section 302 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for life. However, co-accused Sahdeo Singh was acquitted for the offence under Section 302/109 of the Indian Penal Code. 2. The prosecution case has arisen on the basis of the EI.R. (Ext. 2) of P.W.1 Rambriksh Mahto lodged before the Manatu P.S. on 07.08.87 at 12.00 hours regarding the occurrence which is said to have taken place on 06.08.87 at 8.00 hours in village Dhirgiri which is within a dense forest. 3. According to the prosecution case P.w. 1, the informant, a resident of village Yashpur was getting his cattle grazed in Dhirgiri jungle and Tilak Mahto, the deceased was also getting his she-buffalo grazed nearby and in course of grazing the she-buffalo slipped into the maize field of Jaggu Singh, the father of the appellant and the said she-buffalo also grazed some of the maize plants in the said field. It is alleged that the appellant along with the acquitted co-accused Sahdeo Singh came to the field and, thereafter, this appellant assaulted the deceased by lathi giving four blows on his person as a result of which he fell down. It is also alleged that acquitted co-accused aforesaid was abetting this appellant for the assault on the deceased. The prosecution case further is that the appellant and the acquitted co-accused aforesaid also abused the persons who were getting their cattle grazed in the said jungle and at this the informant fled away from there and he came to the village and narrated the incident to P.W. 2, Shyam Narain Yadav, the brother of the wife of Tilak Yadav aforesaid. It is alleged that, thereafter, P.W.2 went to the place of occurrence in search of the deceased and not finding him there he proceeded to the pound from where he got the she-buffalo released and, thereafter, returned to his village. It is alleged that, thereafter, P.W.2 went to the place of occurrence in search of the deceased and not finding him there he proceeded to the pound from where he got the she-buffalo released and, thereafter, returned to his village. It is also alleged that, thereafter, P.W. 2 got the information at 8 O' clock in the following morning that the dead body of Tilak Yadav is hanging in the Bhandar of the appellant from its Dharan. It is also alleged that Tilak Yadav had died as a result of the assault aforesaid by lathi perpetrated by the appellant and, thereafter, his dead body was hung in the said Bhandar from its Dharan by the appellant and the acquitted co-accused and the said Bhandar is situated in the said very maize field. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in. this case. 5. The prosecution has examined six witnesses to substantiate its case. P.W. 1, Rambriksh Mahto, the informant and the resident of village Yashpur, four miles away from Dhirgiri jungle as well as the alleged place of occurrence, is the solitary ocular witness- of the occurrence. P.W.4, Ganesh Mahto named as an ocular witness in the FIR has been tendered by the prosecution in this case. P.W. 3, Kedar Mahto who has attested the FIR has turned hostile P.W. 2, Shyam Narain Yadav is a hearsay witness regarding the occurrence in question. P.W. 6 is a formal witness who has proved the F.I.R. (Ext. 2). P.W. 5, Dr. Jawahar Lal has conducted the postmortem examination on the dead body of the deceased and the postmortem report per his pen is Ext. 1 in this case. However, the I.O. has not taken oath in this case for the prosecution for the reasons best known to him. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the solitary testimony of P.W. 1, the informant is highly unreliable and unworthy of credit and it suffers with material contradictions and inherent improbabilities which cast a cloud of suspicion to the very credibility of the prosecution case. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the solitary testimony of P.W. 1, the informant is highly unreliable and unworthy of credit and it suffers with material contradictions and inherent improbabilities which cast a cloud of suspicion to the very credibility of the prosecution case. It has also been submitted that there is abnormal unexplained delay in lodging the F.I.R. regarding the alleged occurrence and the F.I.R. suffers with embellishment as a result of deliberation and afterthought and it lacks spontaneity and is bereft of the true version of the occurrence. It has further been submitted that on mere suspicion the appellant has been roped in this case as his field and Bhandar was in the said jungle and the deceased has been assaulted at a different place by some unknown person and his dead body has been brought in the said Bhandar by some unknown person and the said Bhandar is a deserted one having no door plank situated in a lonely• place. It has further been submitted that the I.O. has not been examined in this case by the prosecution which has caused great prejudice to the appellant as he stands debarred from eliciting the facts in his cross examination showing his innocence. Lastly it has been contended that P.W. 1, the informant has deposed on oath that the said maize field belongs to Jagir Singh and on the day of the occurrence he had been to Munka jungle for getting his cattle grazed and as such P.W. 1, the informant has no occasion at all to witness the occurrence and he can never be termed as an ocular witness of the occurrence and therefore, there is total absence of any legal and reliable evidence on the record to support the prosecution case and the learned court below has gravely erred in coming to the finding of the guilt of the appellant and, therefore, the impugned judgment is unsustainable. 7. The learned A.P.P has submitted that P.W. 1 is the most competent witness who has occasion to see the actual assault on the deceased caused by lathi by appellant Mukhdeo Singh and the medical witness has found five injuries on the person of the deceased said to have been caused by hard and blunt substance which is in conformity with the prosecution case. It has also been submitted that the dead body was found hanging in the Bhandar of the appellant from where it has been recovered by the I.O. and the learned court• below has rightly come to the conclusion of the guilt of the appellant in view of the evidence aforesaid. 8. The death of Tilak Yadav, the deceased of this case is not denied by the accused. The dead body was found hanging by the dharan in the Bhandar of the appellant from where it has been recovered. P.W.5, Jawahar Lal has deposed to have conducted the postmortem examination on the dead body of the deceased on 08.08.1987 at 7.00 A.M. and he has found the following ante mortem injuries on his person : (i) Bruise 6" x 4" on the left side of the leg. (ii) Bruise 2" x 1" on the front of abdomen. (iii) Bruise 6" x 1" and 5" x 1" on the back. (iv) Swelling over the right parietal and temporal region of the head. Size 4" x 2" on dissection haeomatoma 4" x 2" below the scalp. There was crack fracture of right parietal bone of the scalp. There was subdural haeomotoma in the right parietal lobe of the brain. (v) Fracture 6th and 7th ribs on the left side of the chest. There was no ligature marks on the neck. Trachea was normal. The medical witness has further deposed that death of the deceased is due to injury no. (iv) aforesaid and all the injuries has been caused by hard and blunt substance may be by lath; and time elapsed since death is 36 hours to 72 hours. The medical witness has also deposed in his cross examination that injury nos. (i) (ii) and (iii) is not dangerous to life and injury no. (iv) is not possible by fall on rock. According to the prosecution case P.W. 1, the informant and the deceased were in the Dhirgiri jungle for getting their cattle grazed. P.W. 1, the informant and the deceased belong to village Yashpur. It has come in the evidence that Dhirgiri forest is four miles away from village Yashpur and there are bushes in between village Yashpur and Dhirgiri. According to the prosecution case P.W. 1, the informant and the deceased were in the Dhirgiri jungle for getting their cattle grazed. P.W. 1, the informant and the deceased belong to village Yashpur. It has come in the evidence that Dhirgiri forest is four miles away from village Yashpur and there are bushes in between village Yashpur and Dhirgiri. There is averment in the F.I.R. that maize field belongs to Jaggu Singh and in that very field there is the Bhandar of the appellant and the cattle of the deceased has entered in the said maize field and has grazed maize plants and at this four blows stated to have been given on the person of the deceased by the appellant. P.W. 1, the informant has deposed in para 1 of his evidence that he as well as the deceased were getting their buffaloes grazed and the she-buffalo of the deceased went in the maize field of the appellant and, thereafter, the appellant came there from his house and assaulted the deceased by lath; in presence of acquitted co-accused Sahdeo Singh. It is pertinent to mention here that P.W. 1 does not whisper in his cross examination regarding any injury caused on the person of the deceased by the appellant. He has also deposed that the deceased fell down and he fled away and gave information regarding the occurrence to P.W.2 Shyam Narain Yadav. In para 2 of the cross examination P.W.1, the informant has deposed that he was getting his cattle grazed in Munka forest which is four miles away from his village which stands contradicted as per the averments made in respect thereof in the F.I.R. (Ext. 2). According to the averment made in the F.I.R. the informant and the deceased were getting their cattle grazed in Dhirgiri jungle and there is no reference therein of Munka jungle. P.W. 1 has further deposed that she-buffalo of the deceased had gone in the field of Jagir Singh and has grazed his maize plant. This evidence of P.W.1, the informant is also in conflict with the averments made regarding the owner of the land having maize crop which is said to have been grazed by the she-buffalo of the deceased. P.W. 1 has further deposed that she-buffalo of the deceased had gone in the field of Jagir Singh and has grazed his maize plant. This evidence of P.W.1, the informant is also in conflict with the averments made regarding the owner of the land having maize crop which is said to have been grazed by the she-buffalo of the deceased. There is no evidence on the record to give an inkling of the fact that the said land belonging to Jagir Singh has any co-relation with the land of the appellant or his father Jaggu Singh. In• this view of the matter it cannot be said that the appellant has any rhyme or reason to assault the deceased as alleged. It is equally pertinent to mention here that the prosecution is conspicuously silent as to what happened to the deceased when he had fallen in the maize field after the assault and as to how and by whom he has been brought to the Bhandar situate in the said maize field allegedly belonging to the appellant. It is pertinent to mention here that P.W.2 has made hectic search of the deceased when he got the information regarding the assault on the deceased by the appellant from P.W.1, the informant and he had gone there and has also visited the Bhandar of the appellant but he did not find Tilak Yadav either alive or dead at either of the places. It is equally surprising as to how P.W.2 has learnt that the buffaloes have been impounded and kept at the pound from where he got them released. The prosecution case is equally conspicuously silent as to who has brought the she buffalo of the deceased to the said pound. Therefore, there is absence of important links in the prosecution case as well as in the evidence brought on the record in respect thereof. P.W.2 has also deposed that appellant Mukhdeo Singh has informed the police regarding the existence of the dead body of the deceased hanging by the Dharan in the said Bhandar and the police had come there and on information to that effect was given to P.W.2 on 07.08.1987 by the village chowkidar. P.W.2 has also deposed that appellant Mukhdeo Singh has informed the police regarding the existence of the dead body of the deceased hanging by the Dharan in the said Bhandar and the police had come there and on information to that effect was given to P.W.2 on 07.08.1987 by the village chowkidar. An assailant in the normal course of human conduct will not inform the police regarding the existence of the dead body and furthermore there is evidence on the record that it is the appellant who has assisted in carrying the dead body of the deceased from the said Bhandarto the Police Station. The medical witness has neither found any ligature mark on the neck of the deceased nor any external injury in the neck as a result of hanging. These are the circumstances which give an inkling of the fact that the murder of the deceased had taken place in a different manner at some other place and for the reasons best known to the informant he has been falsely roped in this case. The evidence of P.W.1 is replete with inherent improbabilities and material contradictions and inconsistencies, which speak volumes against the authenticity of the prosecution case. There is also no evidence of any independent, competent and natural witness of the occurrence to corroborate the solitary testimony of P.W.1 the informant. In this view of the matter the uncorroborated solitary testimony of P.W.1, the informant replete with inherent improbabilities and material contradictions is fit to be brushed aside and at the same time it cannot be said to have ring of truth therein. Therefore, there is no legal and reliable evidence on the record to substantiate the prosecution case beyond all reasonable doubts. Furthermore the appellant stands seriously prejudiced due to the non-examination of I.O. in the facts and circumstances of this case as he stands debarred from eliciting facts regarding the alleged place of occurrence and also in respect of the manner in which the dead body of the deceased was found hanging in the said Bhandar. It, therefore, appears that the learned court below did not meticulously consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. Therefore, the impugned judgment is unsustainable. 9. There is merit in this appeal and it succeeds. The appeal is hereby allowed. It, therefore, appears that the learned court below did not meticulously consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. Therefore, the impugned judgment is unsustainable. 9. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside. The accused is found not guilty to the charge levelled against him and he is also acquitted and discharged from the liability of the bail bond.