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2003 DIGILAW 741 (JHR)

Mageya Hessa v. State Of Bihar (Now Jharkhand)

2003-06-27

D.N.PRASAD, HARI SHANKAR PRASAD

body2003
JUDGMENT Deoki Nandan Prasad, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 27th June, 2002 passed by the Sessions Judge, Singhbhum West at Chalbasa, in Session Trial No. 306 of 1991 whereby and whereunder, the learned Court below convicted the appellant under Section 302/34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The prosecution case in brief is that the informant Bihari Lal Hessa gave his fardbayan alleging therein that on 17.2.1987 at about 11 p.m., he along with his wife was sleeping in his house and on hearing hulla of his father, he came out of room with torch light and saw the accused persons Mageya Hessa (appellant) and Renso Hessa and both were assaulting his father with Jarsa. He tried to save his father but Renso Hessa assaulted him with farsa on his neck. It is also alleged that his father died due to assault by the accused causing injuries on his neck. He raised alarm and thereafter both the accused person fled away. It is further alleged that there was a dispute with the accused persons in respect of the land for which a village panchayati was also held in presence of village Munda and at that time both the accused persons threatened his father to kill him. Accordingly, on the basis of the fardbayan. First Information Report was lodged against the accused persons including the appellant for the offence under Sections 320/34 and 307 of the Indian Penal Code. 3. The police investigated into the case and submitted charge- sheet. Appellant Mageya Hessa appeared before the Sessions Court. Charge was framed under Section 302/34 and 307/34 of the Indian Penal Code. It may be mentioned here that Renso Hessa already died on 1.12.1989. 4. Altogether four witnesses have been examined in this case on behalf of the prosecution in its support. Neither the Doctor who held post mortem nor the Investigating Officer has been examined in the case. The post mortem report has been formally proved by the Court witness as Ext. 5 and admittedly the said post mortem report was not reduced into writing in his presence and he had no personal knowledge about the same. 5. Neither the Doctor who held post mortem nor the Investigating Officer has been examined in the case. The post mortem report has been formally proved by the Court witness as Ext. 5 and admittedly the said post mortem report was not reduced into writing in his presence and he had no personal knowledge about the same. 5. PW 1 claimed to have gone to the house of the informant on 18.2.1987 in the morning and saw the dead body of Mageya Hessa. He came to know about the incident from the mouth of the informant, as he is a hearsay witness. The informant alleged in his Jardbayan that he was also assaulted by accused Renso Hessa (now dead) on his neck by Jarsa, but surprisingly to note here that neither the injury report has been brought on the record by the prosecution nor the Doctor who said to have treated by informant has been examined in this case to establish about the injury caused to Bihari Lal Hessa (PW 1). 6. PW 2 is also a hearsay witness as he came to know about the occurrence from the informant and he had seen the dead body lying on the cot. He claimed to have gone to the house of the informant in the same night on 17.2.1987 after the incident but he had not seen any persons assaulting either to the deceased or to the informant. He deposed in his cross-examination that when he had reached to the place of occurrence, no any other villagers had reached to that place. He returned to his house in the night. He proved the signature on the inquest report. 7. PW 3 has been tendered by the prosecution and she said nothing about the occurrence. PW 4 is the informant. According to him, he had seen the accused persons assaulted his father with Jarsa. He further stated that he was also assaulted by Renso Hessa with farsa and he sustained Injuries on his neck. 8. I have already discussed that neither the injury report of the informant has been produced nor the Doctor who said to have examined the informant has been examined in this case. It may further be mentioned that the learned trial Court also did not find the case true under Section 307/34 of the Indian Penal Code resulting the acquittal of the accused person under the said offences. It may further be mentioned that the learned trial Court also did not find the case true under Section 307/34 of the Indian Penal Code resulting the acquittal of the accused person under the said offences. PW 4 proved the Jardbayan (Ext. 3). He claimed about the dispute between the parties in respect of the land from before, but no any document whatsoever has been produced to substantiate this story. He clearly deposed in his cross- examination that several villagers rushed to the spot in the morning but not . a single villager has been examined by the prosecution in the case. According to him, there was a panchayati in respect of the dispute for a land between the parties but none of the panches or Mundas of the village has come forward to support the said story as alleged. The post mortem report was marked as Ext. 5 by a formal Court witness and admittedly the Doctor who conducted autopsy has not been examined in this case. 9. From perusal of the post mortem report it appears that the deceased sustained the following ante mortem injuries on his person-- (i) Sharp cut injuries left side of neck--by multiple blow by heavy sharp weapon-5" x 3" x bone, vessels, trachea cut; (ii) Sharp cut injury. Mandible left side--6" x 1/2" x bone deep by heavy sharp weapon; (iii) Sharp cut injury left middle finger 2" x 1/4" x 1/8". Nature of weapon--Heavy sharp weapon. Nature of injuries : Nos. (i) and (ii)--Grievous. No. (iii)--Simple, The cause of death was due to shock and haemorrhage resulting the above injuries. No any other witness has been examined. 10. The appellant was examined under Section 313 of the Code of Criminal Procedure and he denied the entire allegations. The Doctor who held post mortem found as many as three injuries on his person and there is nothing specific to show which of the injury was caused by this appellant when admittedly there is a general and omnibus allegation against the appellant Mageya Hessa and Renso Hessa for causing farsa blow. Examination of the Doctor was essential in such type of case so that the defence would have got opportunity to cross-examine the Doctor at length about the injuries said to have been caused or the weapon said to have been used at the relevant time. Examination of the Doctor was essential in such type of case so that the defence would have got opportunity to cross-examine the Doctor at length about the injuries said to have been caused or the weapon said to have been used at the relevant time. The other accused Renso Hessa is already dead and, therefore, it is not definite as to which injury was actually caused by this appellant and which of the injuries was the cause of death. 11. Likewise the examination of the Investigating Officer also appears to be material in such type of cases as non-examination of the Investigating Officer causes prejudice to the case of the defence as the defence would have been able to cross-examine the Investigating Officer and could have elicited the material regarding contradictions of the prosecution witnesses and material found at the place of occurrence and for which the defence have been deprived of availing the opportunity in this case. 12. The learned counsel submitted that not a single neighbour came forward to support the prosecution case in any manner nor any substantive piece of evidence has been brought in connection with the dispute, if any, between the parties from before. It is further argued that there is no material to indicate that this appellant had actually gave fatal blow to the deceased as the appellant is aged bout fifty years and he is an old man. It is further argued that it has come in evidence of the PWs that Munda had sent information at the police station through Choukidar and thereafter the police had come to the village but it is not known whether Station Diary Entry was made by the police or not in the diary and even if the Station Diary Entry was made, what was the contents of the said Station Diary Entry which has not been brought on the record. It is not known why the Investigating Officer has not been examined. Non-examination of the Investigating Officer in the instant case is fatal to the prosecution case, and, therefore, in absence of such lacuna, the entire prosecution case comes within the ambit of suspicion and for which, this appellant is entitled for the benefit of doubt. It is not known why the Investigating Officer has not been examined. Non-examination of the Investigating Officer in the instant case is fatal to the prosecution case, and, therefore, in absence of such lacuna, the entire prosecution case comes within the ambit of suspicion and for which, this appellant is entitled for the benefit of doubt. It is further argued that the informant claimed to have assaulted by Renso Hessa by farsa but no such injury report has been produced, therefore, the whole prosecution story becomes doubtful. It is further argued that it has come in evidence that there was a third person also present at the time of occurrence, but the prosecution has failed to disclose any material as regards to the third person nor the Investigating Officer would have said anything during investigation in the charge-sheet about the said third person and for which also, the prosecution case cannot be relied upon as the prosecution has to come forward with clean and clean hand. Thus, non-examination of the Investigating Officer apparently causes prejudice to the case of the defence and, therefore, this is a fit case in which the appellant will be entitled to be acquitted. 13. Obviously the Investigating Officer and the Doctor have not been examined by the prosecution in this case for the reasons best known to the prosecution. The informant being the sole eye Witness made a general and omnibus allegation against all the accused persons including the appellant whereas the post mortem report indicates about three injuries but it is not clear as to which of the said injuries was caused by this appellant and which of the injuries is fatal for life. The prosecution has to come forward with clean and definite case for conviction of the accused. If there is a doubt/suspicion about manner of occurrence, the benefit will certainly go in favour of he accused. 14. Thus the prosecution case suffers from material infirmity and suspicion regarding the manner of occurrence. Besides that the evidence on record is full of inherent inconsistencies and material contradictions for which the accused is entitled for benefit of doubts. 15. Thus I find that the prosecution has failed to establish the charge against the appellant beyond all reasonable doubts as required under the law. Besides that the evidence on record is full of inherent inconsistencies and material contradictions for which the accused is entitled for benefit of doubts. 15. Thus I find that the prosecution has failed to establish the charge against the appellant beyond all reasonable doubts as required under the law. The learned Court below failed to consider meticulously the evidence on record in proper perspective as the Court below erred in coming to the finding of the guilt of the appellant. 16. In the result, the judgment of conviction and sentence passed by the trial Court is hereby set aside and the appeal is accordingly, allowed. The appellant is acquitted of the charge leveled against him. It appears that the appellant is in jail custody. Therefore, he is directed to be released forthwith, if not wanted in any other case. Hari Shankar Prasad, J. I agree.