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2004 DIGILAW 214 (PAT)

Ram Kishun Murmu v. State Of Bihar

2004-02-23

MRIDULA MISHRA, R.N.PRASAD

body2004
Judgment Ram Nandan Prasad and Mridula Mishra JJ. 1. The appellants have preferred this appeal against the judgment and order dated 23.6.2000/29.6.2000 passed by 2nd Additional Sessions Judge, Banka in Sessions Trial No. 785 of 1998 whereby they have been convicted for the offence under sec. 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life. They have also been convicted for the offence under Sec. 148 of the Indian Penal Code but no separate sentence has been awarded. 2. The case of the prosecution is that Binju Hansda gave his fardbeyan on 19.11.1997 at about 5 p.m. at his village Mahabdeo Asthan that at about 8 a.m. he along with his family members was harvesting paddy crop in Thutha Bahiyar, At about 9 a.m. the appellants and Chotelal Hembrum and Kaila @ Kailash Hembrum variously armed with tani lathi, bow and arrow and iron rod came and abused them. The appellant, Upendra Tudu ordered to kill and he himself gave a tangi blow on his head causing injury and he fell down. Thereafter, appellants, Bariar Tudu, Ram Kishun Tudu and other accused also assaulted him. He raised alarm on which his family members tried to save but the accused ran to assault them. His family members ran away to save their lives. On alarm raised Chinku Hembrum, Baleshwar Hansda and many others came. The accused persons thereafter ran away. The villagers took him to his house. The people of the village were trying to make arrangement to take him to hospital. The motive of the occurrence as alleged was land dispute with the accused persons. 3. On the aforesaid fardbeyan a formal first information report was drawn and investigation was taken up. During investigation the informant died in the hospital. On completion of investigation charge-sheet was submitted against eight persons. Cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court acquitted Chotelal Hembrum and Kaila @ Kailash Hembrum, however, convicted the appellants as indicated above. 4. The defence of the appellants was that they were innocent and had falsely been implicated in the case out of land dispute and village politics. 5. The prosecution in support of its case examined nine witnesses out of which PW 1 has been declared hostile. PW 5 and PW 6 are hearsay witness. PW 7 proved inquest report. 4. The defence of the appellants was that they were innocent and had falsely been implicated in the case out of land dispute and village politics. 5. The prosecution in support of its case examined nine witnesses out of which PW 1 has been declared hostile. PW 5 and PW 6 are hearsay witness. PW 7 proved inquest report. PW 2 and PW 3 claimed to be eye-witnesses to the occurrence. PW 4 is a doctor, who examined the informant but died subsequently. PW 8 is also a doctor, who held post-mortem over the dead body. PW 9 is a formal witness and has proved fardbeyan, Ext, 4 and formal first information report, Ext. 5. 6. The death of Binju Hansda, the informant of the case, who died subsequently in the hospital is not in dispute. There are only two eye-witnesses i.e., PW 2 and PW 3 in the case. PW 2 is son of the deceased and PW 3 is his wife. Their names have not been mentioned in the fardbeyan as witnesses to the occurrence. In the fardbeyan two persons namely, Chinku Hembrum and Baleshwar Hansda were named as witnesses to the occurrence. Chinku Hembrum was not examined in the case. Baleshwar Hansda was examined as PW 1. He was declared hostile. In the fardbeyan the specific case of the prosecution is that the appellant, Upendra Tudu, assaulted on the head of the deceased causing injury on his head. 7. The submission of the learned counsel for the appellants was that PW 2 and PW 3 are relations of the deceased and as such their evidence should not be accepted. In this regard it would not be out of place to mention herein that it is well established rule of law that the evidence of the interested witnesses is not required to be discarded outright rather their evidence should be scrutinised with care and caution. We proceed to examine the evidence of the witnesses keeping in mind the aforesaid well established rule of law. 8. PW 2 is son of the deceased. His evidence is that at the relevant time he and his mother were harvesting paddy crops. Baleshwar Hansda, PW 1, was also harvesting paddy crop in the southern side of his field. His father was. standing in the field. At about 9 a.m. the appellants variously armed came and surrounded his father. 8. PW 2 is son of the deceased. His evidence is that at the relevant time he and his mother were harvesting paddy crops. Baleshwar Hansda, PW 1, was also harvesting paddy crop in the southern side of his field. His father was. standing in the field. At about 9 a.m. the appellants variously armed came and surrounded his father. The appellant, Upendra Tudu, grave order and thereafter all the appellants assaulted his father with the weapons in their hands. Thereafter, appellants Ram Kishun Murmu and Upendra Tudu dragged his father upto four fields. There appellant, Ram Kishun Murmu assaulted his father with tangi. Talo cut the finger of his right hand. When he tried to save his father Talo and Ram Kishun Murmu threatened him. He went to the police station but he learnt that the police had already gone to the place of occurrence. He returned to his house and found that his father was lying on a cot. The police had recorded his fardbeyan. The motive of the occurrence was land dispute. His father knew how to write. His father was surrounded and thereafter he was assaulted. His father fell down after assault and became unconscious. His statement and his mothers statement were recorded on the next day of the occurrence. The police inspected the place of occurrence but he did not seize any thing from there. The blood had fallen on the cot on which his father was lying. He had witnessed the occurrence from a distance of 100 ft. His attention was drawn to the statement made before the police and he stated that he had stated before the police that Upendra Tudu had dragged his father and Ram Kishun Murmu and assaulted with tangi. Talo Devi cut the finger of the deceased. 9. PW 3 is wife of the deceased. Her statement is that she had gone to her field on the day of occurrence at about 9 a.m. The appellants variously armed came. They assaulted her husband while he was standing on the ridge. He fell down thereafter. The appellants took him to the disputed land. Her son, PW 2, was assaulted by Ram Kishun Murmu with fists and slaps. Her daughter, Pw 6, and her grand daughter, PW 5, also came there. Her husband was brought to the house. Her husband was taken to the hospital but he died in the hospital. He fell down thereafter. The appellants took him to the disputed land. Her son, PW 2, was assaulted by Ram Kishun Murmu with fists and slaps. Her daughter, Pw 6, and her grand daughter, PW 5, also came there. Her husband was brought to the house. Her husband was taken to the hospital but he died in the hospital. In cross-examination the witness stated that paddy was grown by the appellants on the disputed land. Her husband was dragged to the disputed land due to which there was scratch on his body and on way blood had fallen. On the cot on which her husband was taken to his house blood had also fallen. Her husband was taken to the hospital at about 10 p.m. Her statement was recorded at the hospital. She had stated before the police that Ganesh Tudu assaulted with rod causing fracture. Talo cut the finger with axe. Ganesh Tudu and Upendra Tudu dragged him to the disputed land and also that her son was also assaulted by Ram Kishun Murmu with fists and slaps. 10. PW 5 is grand daughter of the deceased. Her evidence is that when she reached the place of occurrence she saw that the appellants were surrounding him. In cross-examination the witness categorically stated that when she reached the place of occurrence she saw that blood was coming out from the injury of the deceased. 11. PW 6 is a hearsay witness. However, she has stated in her evidence that the deceased was unconscious. PW 4 is a doctor who examined the injured on 19.11.1997 at 8,55 p.m. and has stated that the injured was unconscious. PW 8 is a doctor, who held post-mortem over the dead body and has stated that combined factor of injuries may lead to unconsciousness. 12. From the discussions of the evidence as above, it is evident that in the fardbeyan specific allegation has been made that appellant, Upendra Tudu assaulted on the head of the deceased with tangi due to which he fell down and thereafter all the accused persons assaulted him with the weapon in their hands. In the evidence the eye-witnesses i.e., PW 2 and PW 3 did not corroborate the aforesaid assault by appellant, Upendra Tudu rather their evidence is that all the accused persons assaulted. In the evidence the eye-witnesses i.e., PW 2 and PW 3 did not corroborate the aforesaid assault by appellant, Upendra Tudu rather their evidence is that all the accused persons assaulted. In the fardbeyan there is nothing that the deceased was dragged to the disputed land but the eye-witnesses, PW 2 and PW 3 categorically stated that the deceased was dragged to the disputed land. PW 3 categorically stated that while dragging blood had fallen on the way and scratch occurred over the body of the deceased due to dragging. In the first information report two witness were named i.e., Chinku Hembrum and Baleshwar Hansda as witness to the occurrence but Chinku Hembrum was not examined and Baleshwar Hansda, PW 1 did not support the prosecution case. The eye- witnesses, namely, PW 2 and PW 3 were not named in the first information report as witness to the occurrence. Moreover, they are relations of the deceased. Their evidence is not consistent with the prosecution case as made out in the fardbeyan, Ext. 4. 13. PW 2 claimed to be eye-witness to the occurrence but has stated in his evidence that after assault his father became unconscious. He also stated in his evidence that his father knew how to write but on the fardbeyan there is no signature of the deceased rather his thumb impression was taken. PW 4 a doctor, who examined the deceased, has stated that the deceased was unconscious. PW 6, the grand daughter of the deceased, is no doubt a hearsay witness but has stated that the deceased was unconscious. PW 8, a doctor, who held post-mortem over the dead body has stated in his evidence that combined factor of injuries may lead to unconsciousness. Therefore in the circumstances, recording of fardbeyan of the deceased becomes suspicious and indicates that the deceased was not in a position to give statement with regard to the occurrence. 14. It is evident from the discussion of the evidence of the eye-witnesses that their attention was drawn to the statement made before the police with respect to assault by the appellants but the investigating officer in the case has not been examined. The attention of the witness was drawn with respect to assault by the appellants and as such non-examination of the investigating officer has caused prejudice to the case of the appellants. 15. The attention of the witness was drawn with respect to assault by the appellants and as such non-examination of the investigating officer has caused prejudice to the case of the appellants. 15. In the instant case, it is evident from the first information report that the deceased was assaulted where harvesting was going on but the eye-witnesses have stated in their evidence that the deceased was dragged to the disputed land and he was assaulted causing injury on his person and from there he was taken to his house. Therefore, it appears that there were two places of occurrence. The investigating officer was not examined and as such the place of occurrence was not established. There is nothing on the record to show that any incriminating material was seized from the place of occurrence. 16. On consideration as discussed above, it appears that the prosecution has failed to establish its case beyond all reasonable doubts and, in such a situation, it is not safe to uphold the conviction of the appellants. Accordingly, the appeal is allowed. The judgment and order of conviction of the trial Court is hereby set aside. The appellant Nos. 1 to 3, namely, Ram Kishun Murmu, Bariar Tudu and Upendra Tudu who are in jail are directed to be released forthwith if not required in any other case. The rest of the appellants, who are on bail are discharged from the liability of their bail bonds. Mridula Mishra, J. 17 I agree.