Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 520 (JHR)

Basu Barla v. State Of Bihar (Now Jharkhand)

2003-04-24

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
ORDER 1. This appeal has been directed by the appellant named above against the judgment and order dated 29.6.1990 passed in ST No. 58 of 1983/375 of 1982 by Shri Shamsher Bahadur Singh, 1st Additional District and Sessions Judge, Gumla whereby and whereunder the appellant was found guilty for the offence punishable under Section 302 of the Indian Penal Code and he was convicted and sentenced to undergo RI for life. However, co-accused Ajgut Topno was found not guilty and acquitted in the said case. 2. The prosecution case has arisen on the basis of the FIR (Ext. 3) of PW 1, Temse Barla, the informant recorded at 9.00 hours on 7.8.1982 regarding the occurrence which is said to have taken place on 6.8.1982 at 18.00 hours at village Turbultand Toli in which Basu Pahan is said to have been done to death. 3. According to the prosecution case the informant PW 1 Tamse Barla was returning from Turbul Bazar in the company of Basu Pahan, the deceased of this case for his village Raiba and at about 6.00 p.m. when he reached at Tandtoli Turbul with the deceased the appellant along with acquitted co-accused came there. It is alleged that the acquitted accused caught the informant and, thereafter, the appellant gave two blows by his lathi on the head of the deceased as a result of which there was profuse bleeding from the head of the deceased who fell down and died and thereafter the appellant and the acquitted co- accused fled away from there. It is further alleged that the informant got himself extricated from the clutches of the co- accused and fled away from there and came to the house and he has narrated the incident to his wife PW 4, James Barla and the village chowkidar. 4. The appellant has pleaded not guilty to the charge leveled 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 on mere suspicion. 5. 4. The appellant has pleaded not guilty to the charge leveled 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 on mere suspicion. 5. Assailing the impugned judgment as perverse and against the evidence on the record it has been submitted by the learned counsel for the appellant that there is no iota of legal evidence at all on the record to come to the finding of the guilt of the appellant in this case and the learned Court below has erred very gravely in coming to the finding of the guilt of the appellant. It has also been submitted that PW 1, the informant as per the averments made in the FIR is a solitary eye-witness of the occurrence in question but his evidence on oath does not at all show that he can be termed as an ocular witness of the occurrence having occasion to witness the assault on the deceased by the appellant as alleged and, therefore, the evidence of PW 1 is fit to be brushed aside. It has further been submitted that PWs 2, 3 and 4 who have taken oath in this case are the hearsay witnesses of the occurrence to have learnt about the same from PW 1 and when PW 1 himself has not seen the occurrence as deposed by him then in that case the evidence of PWs 2, 3 and 4 has lost all its relevance in this case and it pales into insignificance as corroborative evidence. Rest of the witnesses are formal witnesses. Lastly it has been contended that the I.O. and the doctor have not taken oath in this case for the prosecution though the post-mortem report has been brought on the record as Ext. 2 proved by a formal witness and great prejudice has been caused to the appellant due to their non- examination in this case as he stands debarred from eliciting facts in their cross- examination showing his innocence. It has also been submitted that according to the prosecution case two blows by lathi are said to have been inflicted on the head of the deceased but surprisingly enough the postmortem report (Ext. It has also been submitted that according to the prosecution case two blows by lathi are said to have been inflicted on the head of the deceased but surprisingly enough the postmortem report (Ext. 2) only reveals regarding the existence of only one lacerated wound on the scalp of the deceased and the postmortem report and the existence of the single injury on the head of the deceased clearly establishes the fact that PW 1, the informant has no occasion at all to witness the occurrence and in this view of the matter the evidence of PW 1 appearing in para 5 of his testimony that he cannot say as to who has assaulted Basu Pahan appears to be correct. Lastly it has been contended that there is no semblance of any legal evidence on the record to establish the guilt of the appellant beyond all reasonable doubts in this case and hence the impugned judgment is unsustainable. 6. The learned APP has submitted that the solitary testimony of PW 1, the informant is self contradictory and there is no evidence of any other witness on the record to corroborate his testimony. 7. Death of Basu Pahan having taken place at 18.00 hours on 6.8.1982 at Tandtoli Turbul is not in dispute. After institution of the case as per the FIR lodged by PW 1, the informant, the dead body of the deceased was sent for post- mortem examination. The post-mortem report has been brought on the record as Ext. 2 proved by a formal witness. The doctor conducting the post-mortem examination on the dead body of the deceased has not taken oath in this case. The I.O. has also not been examined in this case for the prosecution for the reasons best known to it. However, post-mortem report (Ext. 2) reveals the existence of only one lacerated wound on the scalp of the deceased and as per the opinion expressed therein the death of the deceased has resulted due to the said injury. Now a pertinent question arises as to who has committed the murder of the deceased and what 4s the legal evidence on the record in respect thereof. Now a pertinent question arises as to who has committed the murder of the deceased and what 4s the legal evidence on the record in respect thereof. According to the averments made in the FIR it is the appellant who is said to have given two lathi blows on the head of the deceased as a result of which he fell down and died and the co-accused had caught the informant at that time. There is no whisper in the FIR regarding the presence of any other person at the place of occurrence. According to the averments in the FIR, the informant extricated himself and fled away from there and finally took shelter in his own house and narrated the incident to this wife. PW 4. James Barla and the village chowkidar. It is queer enough that inspite of the information neither PW 4 nor the village chowkidar came to the place of occurrence in the company of the informant. Even the Informant did not inform the police regarding the occurrence soon, thereafter, and he preferred to go to his house. Be the case as it may let us now advert to the evidence of PW 1. In his examination-in-chief he has fully corroborated the prosecution case regarding the assault on the deceased by the appellant in the manner as averred in the FIR (Ext. 3) but in para 5 of his cross-examination he has contradicted his own testimony in the most clear and unequivocal terms In which he has deposed that he cannot say as to who has assaulted the deceased. He has further stated in the very next breath thereafter that what has he deposed in his examination-in-chief is totally false. Again in para 9 of his. cross-examination this witness has deposed that he has seen the occurrence and, thereafter, in para 10 he has deposed that he does not know as to why the appellant has assaulted the deceased. Now a pertinent question arises as to whether the testimony of PW 1, the informant is to be believed or not. Before adverting to the answer of this question posed by us it is relevant to mentioned here that there is no other evidence on the record of any independent, competent and natural witness of the occurrence. Now a pertinent question arises as to whether the testimony of PW 1, the informant is to be believed or not. Before adverting to the answer of this question posed by us it is relevant to mentioned here that there is no other evidence on the record of any independent, competent and natural witness of the occurrence. The Turbul Bazar is only 200 yards from the place of occurrence and village Turbul is also about 200 yards from the place of occurrence but it is surprising enough that nobody came to the place of occurrence. There is no iota of evidence on the record to corroborate the solitary self inconsistent testimony of PW 1, the informant regarding the assault on the head of the deceased alleged to have been perpetrated by the appellant. It is also relevant to mentioned here that at the alleged time of occurrence the Sun has already set and it has become dark. In such a situation also it does not appear probable that PW 1 has the occasion to witness the occurrence. Therefore, in the facts and circumstances of this case the solitary self-inconsistent and contradictory testimony of the informant uncorroborated in material particulars by any evidence on the record of any other independent, competent and natural witness regarding the occurrence is fit to be brushed aside in the facts and circumstances of this case. Therefore, there is no iota of legal evidence at all on the record to substantiate the prosecution case and to prove the guilt of the appellant beyond all shadow of doubt. The testimony of PW 1, the solitary eye-witness of the occurrence is unworthy of credit fit to be brushed aside in the facts and circumstances of this case. The learned Court below has utterly failed in scrutinizing the evidence on the record in proper perspective and has committed a manifest error in coining to the finding of the guilt and the impugned judgment is, therefore, unsustainable. 8. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside. The appellant is found not guilty and he is, accordingly, ac quitted and discharged from the liability of the bail bond.