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2004 DIGILAW 629 (JHR)

Labai Kisku v. State of Bihar (now Jharkhand)

2004-06-23

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT : Lakshman Uraon, J.-This appeal is directed against the judgment and order of conviction dated 22.8.1996 and sentence dated 27.8.1996 passed by Shri Mahesh Prasad Tiwary, learned 5th Additional Sessions Judge, Dumka in Sessions Case No. 122 of 1994, whereby and whereunder ail the appellants have been convicted for the offence under Sections 302/34 IPC and sentenced to undergo imprisonment for life. He further convicted the appellants for the offence punishable under Sections 323 and 542 IPC and sentenced each of them to undergo R.1. for one year each on each count. The learned 5th Additional Sessions Judge, Dumka directed that all the sentences in respect of all the appellants in each count shall run concurrently. 2. The prosecution case has arisen on the basis of FIR (Ext.1) lodged by Sonadhan Soren (PW-9) on 2.2.1994 at 11.30 am alleging therein that on Tuesday i.e. 1.2.1994, Dhena Soren (PW5) and his wife Parvati Murmu (PW3) picked up quarrel regarding domestic affairs. Both of them went to village Pradhan Gudui Marandi (PW4) to solve their differences. Village Pradhan (PW4) assured them to settle the dispute in the next morning. Both of them returned home. Thereafter at 7.00 p.m. on the same day, appellant NO.3 Surja Kisku of Kalaibari went to the home of Dhena Soren and inquired as to why he had picked up a quarrel with his wife PW3 Parvati Murmu. He abused Dhena Soren. There was scuffle in between Surja Kisku and Dhena Soren. Surja Kisku went home and again at about 7.30 p.m. came back along with his brother Ganesh Kisku (appellant no. 4). Dilip Kisku, Labai Kisku (appellant No.1). Shibu Hansda, Amin Murmu (appellant No.2). forming an unlawful assembly armed with iron rod and lathi. They entered into the house and started assaulting Dhena Soren (PW5) and Lalu Tudu (PWS) with Lathi and iron rod. Both of them sustained injuries due to assaults. Mother of the informant Pikru Kisku. who was at home, was going to call village Chaukidar and had covered about 500 yards towards north of her home. When she reached at Bhutwari of the same village Kalaibari, then Surja Kisku (appellant No.3) Ganesh Kisku (appellant No.4) Dilip Kisku. Labai Kisku (appellant No.1). Shibu Hansda, Amin Murmu (appellant No.2) assaulted Pikru Kisku with lathi and rod and murdered her. On the cry of his mother. When she reached at Bhutwari of the same village Kalaibari, then Surja Kisku (appellant No.3) Ganesh Kisku (appellant No.4) Dilip Kisku. Labai Kisku (appellant No.1). Shibu Hansda, Amin Murmu (appellant No.2) assaulted Pikru Kisku with lathi and rod and murdered her. On the cry of his mother. informant and his brother Samsul Soren (PW6), wife Khandi Hansda and other villagers went there and saw the accused persons assaulting his mother. Surja Kisku assaulted with iron rod and others assaulted with lathi to Pikru Kisku and murdered her. 3. The prosecution examined altogether 12 witnesses in order to substantiate the charges levelled against Surja Kisku. Ganesh Kisku, Labai Kisku, Dilip Kisku, Shibu Hansda and Amin Murmu. PW1, Koncha Kisku and PW2 Paltan Murmu are the formal witnesses of inquest report and seizure-list. PW3 Parvati Kisku is the wife of PW5 Dhena Soren. PW4 Gudui Marandi, village Pradhan, is quite ignorant about the alleged occurrence and is a hostile witness. P.W.6 Samsul Soren is the son of the deceased and claims to be the partly eyewitness. PW 7 Khandi Hansda is the wife of the informant PW9 Sonadhan Soren. P.W.8 Lalu Tudu who was going along with Pikru Kisku, his phuphu, to inform the Chaukidar, was also assaulted but he could not identify the assailants due to darkness and is a hostile witness. PW 10 Yamuna Pd Singh is the Investigating Officer, whereas PW 11 Dr. S. Murmu conducted autopsy on the dead body of Pikru Kisku and PW 12 Dr. Ajit Kumar examined the injured Lalu Tudu (PW 8) and Dhena Soren (PWS). Thus, PW3, PWS, PW6, PW7, and PW9 are closely related with the deceased and are of the same family, whereas PW8 is also related with the deceased as she was his phuphu. 4. The learned 5th Additional Sessions Judge, Dumka relied the evidence of the closely related witnesses before whom they have claimed that deceased Pikru Kisku disclosed the names of the assailants on her person which is the oral dying declaration made by Pikru Kisku to her close relatives. He also believed the evidence of injured witnesses-PWS Dhena Soren and PW8 Lalu Tudu. He found the manner of occurrence as alleged that appellant Surja Kisku assaulted with iron rod piercing on the abdomen of Pikru Kisku, whereas the others assaulted with lathi finds corroboration by the medical evidence of PW11 Dr. He also believed the evidence of injured witnesses-PWS Dhena Soren and PW8 Lalu Tudu. He found the manner of occurrence as alleged that appellant Surja Kisku assaulted with iron rod piercing on the abdomen of Pikru Kisku, whereas the others assaulted with lathi finds corroboration by the medical evidence of PW11 Dr. S. Murmu and from injuries sustained by PW5 and PW8 corroborated by Dr. Ajit Kumar (PW12) and, convicted all these appellants and sentenced them for the offences charged against them. He did not find the evidence for conviction against accused Dilip Kisku and Shibu Hansda. Hence they were acquitted. 5. Learned counsel for the appellants has argued that PW9 informant Sonadhan Soren has deposed that at the time of occurrence, it was night who identified the accused persons from their voice who had gone to the place of occurrence on hearing the cries of his mother. The learned 5th Additional Sessions Judge has found that PWs. 2, S, 6, 7 and 9 are not the eyewitnesses of the actual occurrence of assault on the deceased. On this basis it was urged that none of the prosecution witnesses had seen the occurrence. PW. 11 Dr. S. Murmu who conducted autopsy on the dead body of Pikru Kisku on 3rd February, 1994 at 11.45 a.m., opined that the time elapsed since death was within 36 hours. According to his opinion, the occurrence must have taken place after 12.00 night of 2nd February, 1994; whereas according to prosecution story, it took place on 1st February, 1994 at 7.30 p.m. Post mortem report (Ext.4) is clear that Dr. S Murmu (PW11) found only three ante mortem injuries on the dead body of Pikru Kisku and the death was as a result of injury Nos. 2 and 3. Injury NO.2 had been caused by some hard and blunt substance, but injury NO.3 had been caused by some pointed and sharp weapon. Surja Kisku was armed with iron rod and the others were with lathis. Hence, none of the assailants was armed with any pointed sharp weapon. Thus, the fact and the manner of alleged occurrence are being falsified by the medical evidence which is contradictory to ocular evidence. It was further submitted that there is no specific evidence of assault against any of the assailants. Hence, none of the assailants was armed with any pointed sharp weapon. Thus, the fact and the manner of alleged occurrence are being falsified by the medical evidence which is contradictory to ocular evidence. It was further submitted that there is no specific evidence of assault against any of the assailants. PW6 Samsul Soren, son of the deceased, and PW8 Lalu Tudu were going to inform Chaukidar along with Pikru Kisku. PW8 Lalu Tudu was also assaulted by someone, but due to darkness he could not identify any of the assailants. Thus, the evidence of this eyewitness (PW8) completely demolishes the prosecution story as set up by PW9 Sonadhan Soren. PW9 Sonadhan Soren (informant) has also contradicted the statement of the witnesses that while his mother was going to call village Chaukidar, she was assaulted, but according to PWs. 3, 5, 6, 7 and 9, she was assaulted while she was coming back from the house of Chaukidar. Although these witnesses are of the same family and highly interested witnesses, even then they have given a contradictory statement. The first place of occurrence is the house of the informant and the second place of occurrence is 500 yards away from the village Kalaibari at Bhutwari where Pikru Kisku was assaulted. Informant in his fardbeyan has alleged that his mother was murdered at that very place i.e. the second place of occurrence Bhutwari. The dead body was brought home and was kept in the Aangan, rapped with an old cloth Chadar. The 1.0. (PW.1 0) Yamuna Pd Singh did not find any objective finding i.e. blood stained soil or any mark of struggle at the second place of occurrence Bhutwari. PW.7 Khandi Hansda, wife of the informant, has deposed that her mother-in-law Pikru Kisku was likely to die when she was brought home and was not in a position to speak anything. This contradicts the evidence of PW.3 Parvati Murmu and PW.6 Samsul Soren that Pikru Kisku disclosed the names of the assailants. PWs. 5, 6, and 9 have not stated that Pikru Kisku had made any dying declaration naming the assailants. In view of this fact, it was urged that the learned Court below has erroneously relied the oral dying declaration alleged to have been made by Pikru Kisku resulting conviction to these innocent appellants. PWs. 5, 6, and 9 have not stated that Pikru Kisku had made any dying declaration naming the assailants. In view of this fact, it was urged that the learned Court below has erroneously relied the oral dying declaration alleged to have been made by Pikru Kisku resulting conviction to these innocent appellants. The learned counsel in course of his argument on this point has relied upon a case reported in "(2001) 6, S.C.C., 118 (Lakshmi [Smt], appellant vs. Om Pakash and others, respondents)" and; "(2001) 6, S.C.C., 407 (Arbind Singh, appellant vs. State of Bihar, respondent)." The learned counsel has further submitted that only the interested witnesses of the same family have been examined by the I.O. whose evidence are also contradictory about the manner of the alleged occurrence. Hence their testimony cannot be relied without any corroboration by independent village witnesses and has relied a case reported in "(2000) 7, S.C.C., 490 (Hukum Singh and others, appellants vs. State of Rajasthan, respondent)." It was further submitted that there were six named accused. Appellant Surja Kisku is alleged to have armed with iron rod and others were armed with lathis. In the darkness they assaulted Lalu Tudu and Pikru Kisku. Lalu Tudu could not identify and of the assailants who was at the second P/O Bhutwari. The doctor (PW 11) found only three injuries on the dead body-first caused by sharp pointed weapon and the other two caused by hard and blunt substance. Thus, the assailants were six against whom it is alleged that all of them assaulted Pikru Kisku, but only three injuries were found and none of assailants was armed with sharp pointed weapon. It was stated that injury report is not corroborated by the post mortem report and also by the ocular evidence of the interested witnesses. Thus, the prosecution case remained uncorroborated by any natural independent and competent witnesses of the vicinity of the place of occurrence and has relied a case reported in "2003(1), JLJR, 37 in Wakil Murmu and Budhrai Hembram, appellants vs. State of Bihar, respondent." On these grounds, it was submitted that the appellants deserve acquittal giving them benefit of doubt. 6. Refuting the argument advanced by the learned counsel for the appellants, the learned A.P.P. has submitted that although PWs. 6. Refuting the argument advanced by the learned counsel for the appellants, the learned A.P.P. has submitted that although PWs. 3, 5, 7 and 9 are closely related and interested witnesses; but their evidence cannot be discarded only on this ground when they have supported the Prosecution case that all the appellants assaulted Pikru Kisku resulting her death. They have also assaulted Dhena Soren (PW5) and Lalu Tudu (PW8), who are the injured witnesses, whose evidence is also corroborative that these appellants assaulted them and the deceased Pikru Kisku. Nonfinding of any objective evidence at the second place of occurrence Bhutwari does not discredit the prosecution case as the 1.0. (PW10) seized the old Chadar, rapped with the dead body having bloodstains on it. Pikru Kisku had disclosed that appellants Surja Kisku stabbed her with iron rod on her abdomen and the others assaulted with lathis. PW11 Dr. S. Murmu found one injury caused by sharp pointed weapon corroborates the ocular evidence. The learned Sth Additional Sessions Judge has considered all these oral and documentary evidence and has held these appellants guilty and convicted them which does not require any interference. 7. The genesis of the alleged occurrence is that PW3 Parvati Murmu and her husband PWS Dhena Soren had picked up quarrel regarding domestic affairs. Both of them had gone to village Pradhan PW4 Gudui Marandi for settlement. In course of evidence, PW3 Parvati Murmu and PWS Dhena Soren have deposed that there was no family quarrel in between them regarding domestic affairs. Thus, the very genesis of the alleged occurrence could not be established. PW4 Gudui Marandi has deposed that only PW3 Parvati Murmu had gone to him for settlement of her dispute with her husband PWS. He assured to settle their differences in the morning as all the villagers were drunkard on that day and he himself was taking Pochai (local drink). He asked Parvati Murmu to stay at his home, but PW3 Parvati Murmu heard alarm coming from her house, hence, she went to her home. She saw her husband PW8 Dhena Soren lying injured in an unconscious stage. Surja Kisku (appellant No.3) went there and informed the elder brother of Dhena Soren that he had assaulted his mother Pikru Kisku. He asked them to go to bring her home back. She saw her husband PW8 Dhena Soren lying injured in an unconscious stage. Surja Kisku (appellant No.3) went there and informed the elder brother of Dhena Soren that he had assaulted his mother Pikru Kisku. He asked them to go to bring her home back. PW3 along with Samsul Soren (PW6) and her husband PW8 who had regained his sense by that time, went to Bhutwari which is jungle area and saw Pikru Kisku injured with bleeding Injuries. When Pikru Kisku was brought home, then, when asked, she named Labai Kisku, Amin Murmu, Surja Kisku and Ganesh Kisku, all these four appellants, who assaulted her with iron rod and lathis. She also informed that appellant Surja stabbed her. However, this witness does not know as to who assaulted her husband Dhena Soren (PW5). PW3 has deposed that after three hours of her giving dying declaration, Pikru Kisku died. PW4 Gudui Marandi, Village Pradhan is quite ignorant as to what happened in the village and also about the death of Pikru Kisku and is a hostile witness. P.W5 Dhena Soren was at his home when appellants Surja Kisku and Ganesh Kisku after breaking open the door, entered into his house. There was scuffle which was intervened by PW6 Samsul. After sometimes, Dilip Kisku (acquitted), Labai Kisku, Amin Murmu and Shibu Hansda (acquitted) went there. Sarju was armed with iron rod and others with bamboo sticks. They assaulted him. On being injured, he became unconscious. Even then he has deposed that his mother Pikru Kisku along with PWS Lalu Tudu (hostile witness) and PW6 Samsul Soren went to inform village Chaukidar. He was informed by Samsul and Lalu that his mother was done to death and asked him to go and bring the dead body. They went and brought the dead body. He has not stated anything regarding any dying declaration made by Pikru Kisku-his mother. PW6 Samsul Soren, who was present at the second PI O-Bhutwari, went there when the assailants fled away and is not an eyewitness. PWS Lalu Tudu was also with Pikru Kisku and was assaulted, but he could not identify any of the assailants due to darkness. PW 6 Samsul Soren has deposed that while he was going to inform Chaukidal along with his mother Pikru Kisku and Lalu Tudu (PWS), they were assaulted by Surja, Ganesh, Dilip, Labai, Amin, Shibu, who were six In number. PW 6 Samsul Soren has deposed that while he was going to inform Chaukidal along with his mother Pikru Kisku and Lalu Tudu (PWS), they were assaulted by Surja, Ganesh, Dilip, Labai, Amin, Shibu, who were six In number. This witness, out of fear, fled away towards the jungle. The assailants assaulted his mother and Lalu Tudu. When he went home, he saw Lalu Tudu also who had sustained injuries. Lalu Tudu informed him that Surja and Ganesh assaulted him and also assaulted Pikru, but PW8 Lalu Tudu could not identify any of the assailants and was declared hostile by the prosecution. PW3 and PW6 have deposed that Pikru Kisku disclosed the names of the assailants at home, but PW7 Khandi Hansda has deposed that when she along with others went to the second place of occurrence, they saw Pikru Kisku injured and was likely to die. She was not in a position to speak. This statement contradicts the statement that Pikru Kisku made her dying declaration at home and thereafter she died. PW9 Sonadhan Soren (informant and son of the decease) has deposed that his brother Dhena Soren and Parvati (PW3) had gone to village Pradhan which is contradicted by the village Pradhan himself that only Parvati Murmu has been to his house to request for setting their dispute. Informant (PW9) has not stated in his FIR or in his deposition regarding any dying declaration made by his mother naming the assailants. Thus, the evidence of interested witnesses regarding oral dying declaration remained uncorroborated even 9.y the interested witnesses. Hence, the conviction based on the alleged oral dying declaration made by Pikru Kisku remained uncorroborated and cannot be relied upon to convict these appellants. The 1.0. (PW10) Yamuna Pd. Singh also did not find any blood fallen at Bhutwari where Pikru Kisku alleged to have been assaulted and stabbed and blood oozed out. 8. PW 11 Dr. S. Murmu on 3.2.1994 at 11.45 am, conducted autopsy on the dead body Pikru Kisku and found rigor mortis present. He found (i) diffuse swelling over the left upper arm with fracture of the left humerous, (ii) diffuse swelling over the right side of the chest which was found fracture of the 2nd to 4th ribs of the right side. S. Murmu on 3.2.1994 at 11.45 am, conducted autopsy on the dead body Pikru Kisku and found rigor mortis present. He found (i) diffuse swelling over the left upper arm with fracture of the left humerous, (ii) diffuse swelling over the right side of the chest which was found fracture of the 2nd to 4th ribs of the right side. Huge collection of blood were found inside the thoracic cavity and, (iii) penetrating incised wound 4" x 2" x bladder deep over the right iliac region by piercing the iliac crest bone. The underlying structures were lacerated and torn and collection of blood were found inside the pelvic cavity. The death was due to haemorrhage and shock as a result of injury Nos. 2 and 3. They were sufficient to cause death in ordinary course. Injury Nos. 1 and 3 were caused by hard and blunt substance such as Lathi or iron rod and injury NO.3 was caused by sharp weapon such as Sabal. The time elapsed since death was 36 hours. Post mortem report (Ext.4) is in his pen. Thus, the medical evidence that Pikru Kisku sustained injury No. 3 penetrating incised wound caused by some sharp pointed weapon remained uncorroborated as none of the assailants was armed with such weapon, rather they were with iron rod and lathi which resulted injury Nos. 1 and 2. PW 12 Dr. Ajit Kumar on 2.2.1994 examined injured Lalu Tudu (PW8) and found pain and swelling on his person, also simple in nature caused by lathi or iron rod. Ext. 5 is the injury report. Dhena Soren (PW5) was also examined who sustained two lacerated wounds and pain with swelling on the left thigh, all simple in nature caused by hard and blunt substance such as lathi or iron rod and Ext. 5/1 is the injury report in respect of him. As I have stated that PW8 Lalu Tudu due to darkness could not identify any of the assailants who was at the spot where Pikru Kisku was done to death, gives doubt in the prosecution case that these appellants along with other assailants, who were acquitted, were there and assaulted Pikru along with PW8 Lalu Tudu and PW6 Samsul Soren who fled away out of fear. PW6 Samsul Soren in course of his evidence has deposed that his mother managed to escape and was going to inform the village Chaukidar. PW6 Samsul Soren in course of his evidence has deposed that his mother managed to escape and was going to inform the village Chaukidar. This witness along with Lalu Tudu also accompanied her. When they were returning from the house of village Chaukidar, whom they could not meet, the appellants came out from a ditch, who were six in number, in the jungle and assaulted them. PW 6 out of fear fled away towards the Jungle. Lalu Tudu was assaulted, but he could not identify any of the assailants as deposed by him. They also assaulted Pikru. This witness PW 6 is not the eyewitness of the manner of the alleged occurrence, but he was informed by Lalu Tudu, whereas Lalu Tudu himself has not seen any of the assailants. Later on, this witness along with elder brothers Sonadhan Soren (informant) and Dhena Soren (PW8) went to Bhutwari. By that time, it was dark. They saw Pikru Kisku fallen down there. She disclosed that all the six persons, named in the FIR including these four appellants, assaulted her. This witness PW6 has deposed that all these statements were not made by him before the I.O. under Section 161 Cr. P. C. out of fear, rather he has deposed all these facts for the first time in Court. In view of this self admission of this witness, his evidence cannot be relied. P.W. 7 Khandi Hansda is very specific that her mother-in-law Pikru Kisku was about to die and was not in a position to speak anything at the second place of occurrence Bhutwari. In view of this fact the alleged dying declaration made by Pikru Kisku remained uncorroborated even by the interested witnesses. P.W.10 I.O. Yamuna Pd Singh did not find any blood at Bhutwari, the second place of occurrence which is 500 yards away from the village home of the informant, also creates doubts as to where Pikru Kisku was assaulted. It is also doubtful as to whether the assailants were these appellants whom Lalu Tudu could not identify at the spot who also sustained injuries due to assaults. 9. It is also doubtful as to whether the assailants were these appellants whom Lalu Tudu could not identify at the spot who also sustained injuries due to assaults. 9. When considered of all the pros and cons of the prosecution case and the evidence of the interested witness, I am of the opinion that the prosecution has failed to prove the genesis of the alleged occurrence and the manner of the alleged occurrence, as none of the interested witness are eyewitness as to who assaulted Pikru Kisku resulting her death. It is also doubtful that Pikru Kisku made any dying declaration as she was likely to die at the second place of occurrence-Bhutwari, and was unable to speak. Hence, any statement at home made by her naming the assailants is doubtful. The learned 5th Additional Sessions Judge has erroneously relied the evidence of the interested witnesses which are itself contradictory and were not corroborated by the medical evidence of Dr. S. Murmu (PW11) who found only three injuries out of them injury no. 3 was piercing injury caused by sharp pointed weapon and other two injuries on the person of the deceased Pikru Kisku and the injuries on the persons of PW5 Dhena Soren and PWS Lalu Tudu, who were examined by PW12 Dr. Ajit Kumar, were caused by Lathi and iron rod. There were six assailants, but injuries are only three in number on the person of the deceased. On the person of injured Lalu Tudu, there was pain with swelling at three places, whereas on the person of Dhena Soren, there were two lacerated wounds and one pain with swelling, all simple in nature. The learned 5th Additional Sessions Judge himself is very clear that none of the interested witnesses, closely related, who are PWs. 3, 5, 7 and 9 are the eyewitnesses. When there is no eyewitness regarding the manner of the alleged occurrence and the oral dying declaration made by Pikru Kisku remained uncorroborated and doubtful as she was unable to speak at the second place of occurrence Bhutwari, then how could she make any statement when she was taken to her home, is also doubtful. In view of this fact, I find that the findings of conviction and sentence passed by the learned Court below cannot be sustained in the eye of law. 10. In view of this fact, I find that the findings of conviction and sentence passed by the learned Court below cannot be sustained in the eye of law. 10. In the result, I find merit in this criminal appeal which succeeds and is allowed. All the appellants are acquitted. Appellant NO.1 Labai Kisku, appellant No.2 Amin Murmu and appellant NO.4 Ganesh Kisku, who are on bail, are discharged from the liability of their bail bonds, whereas appellant NO.3 Surja Kisku, who is in custody, is ordered to be released forthwith from the custody, if not wanted in any other case. S.J. Mukhopadhaya, J.-I agree.