Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 791 (JHR)

Firangi Munda v. State of Bihar (now Jharkhand)

2004-08-05

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2004
JUDGMENT : Lakshman Uraon, J. - Appellant Firangi Munda has preferred this appeal against the order of conviction and sentence dated 18th September, 1989 passed by Shri B.N. Singh, Sessions Judge, Gumla in Sessions Trial No. 295 of 1986 whereby and whereunder the sole appellant was convicted under Section 302 IPC and sentenced to undergo R.I. for life. 2. The prosecution launched on the fardbeyan (Ext. 1/1) of informant Sanichar Domra (P.W. 5) recorded by S.I. R.P. Singh of Kamdara PS on 21.10.1985 at 6.00 a.m. is that he along with P.W. 3 Sanichar Kharia and P.W. 7 Budhram Oraon were harvesting paddy crops of their master P.W. 8 Gulab Choudhary. Manager of the landlord, namely, Jamadar Singh was reading book by sitting on the ridge at about 1.00 p.m. on 20.10.1985. He heard sound of tapping and saw that one person whose name they were not knowing who was resident of village Murga Toli, PS-Kamdara, went there and gave axe-blow on the head of Jamadar Singh from behind. Jamadar Singh on being injured fell down. All the three labourers harvesting the paddy crops, rushed there. By that time, the assailant fled away on cycle with axe. They brought injured Jamadar Singh on the road under the tree. He had sustained bleeding injury and was unconscious. Rajesh of Kamdara was coming on a cycle. He was asked to inform the landlord. On being informed, Chhabi Nath Ohdar (P.W. 4), servant of P.W. 8 Gulab Choudhary, went to the P/O taking a truck. Injured Jamadar Singh was taken to hospital, on the truck who died in the morning. Later on, the informant came to know that Firangi Munda (appellant) was the assailant. 3. The prosecution, in order to prove the charge, examined 9 witnesses. P.W. 1 and P.W. 2 are formal witnesses. P.W. 3 Sanichar Kharia, P.W. 5 Sanichar Domra (informant) and P.W. 7 Budhram Oraon are the eyewitnesses who were harvesting the paddy crops of their landlord P.W. 8 Gulab Choudhary. P.W. 4 Chhabi Nath Ohdar simply took the truck to carry the injured Jamadar Singh and took him to hospital. P.W. 6 Fudo Devi, wife of the deceased, a hearsay witness, saw the dead body of her husband. P.W. 9 Dr. Yogendra Prasad is another formal witness who has not conducted post mortem examination on the dead body, but has proved the post mortem report conducted by Dr. P.W. 6 Fudo Devi, wife of the deceased, a hearsay witness, saw the dead body of her husband. P.W. 9 Dr. Yogendra Prasad is another formal witness who has not conducted post mortem examination on the dead body, but has proved the post mortem report conducted by Dr. K.P. Srivastava (Ext. 2). 4. The learned Court below relied the evidence of the prosecution witnesses and convicted the sale appellant under Section 302 IPC and sentenced him thereunder. 5. The learned counsel for the appellant assailing the order of conviction and sentence passed by the learned Court below, has submitted that his conviction is against the weight of evidence on record. Only on the evidence of unreliable testimony of witnesses, the appellant has been convicted. None of the labourers, who claimed themselves to be the eyewitnesses and rushed to the P/O, have supported the prosecution case. In this present case, the I.O. and the doctor who conducted the post mortem examination on the dead body of the deceased Jamadar Singh @ Ramashish Singh, have not been examined which has caused serious prejudice to the appellant. The eyewitnesses-P.W. 3, P.W. 5, and P.W. 7, could not prove the place of occurrence where Jamadar Singh @ Ramashish Singh was assaulted oozing profuse blood. Injured Jamadar Singh @ Ramashish Singh died in the hospital. Even then, no FIR was lodged earlier at the hospital itself. How the fardbeyan was recorded at the village when the injured died in the hospital on 20.10.1985? The statement recorded under Section 313 Cr.P.C. of this appellant has not been explained the circumstances appearing against him. On these grounds, it was submitted that the appellant deserves acquittal. 6. Learned A.P.P. has submitted that the eyewitnesses- P.W. 3, P.W. 5, and P.W. 7, have seen this appellant assaulting with axe on the head of deceased Jamadar Singh from behind. They also saw this appellant fleeing away taking axe on his cycle. 7. P.W. 5 Sanichar Domara (informant) was harvesting the paddy crops along with Sanichar Kharia (P.W. 3) and Budhram Oraon (P.W. 7). Manager of landlord Gulab Choudhary, namely Jamadar Singh, was reading books by sitting on the ridge. He has deposed that someone produced tapping sound of axe by cutting Jamadar Singh. Thereafter, he fled away on the cycle. They informed Rajesh and asked him to inform the landlord. Manager of landlord Gulab Choudhary, namely Jamadar Singh, was reading books by sitting on the ridge. He has deposed that someone produced tapping sound of axe by cutting Jamadar Singh. Thereafter, he fled away on the cycle. They informed Rajesh and asked him to inform the landlord. He brought a truck and the injured was taken to hospital. At that time, all these three eyewitnesses were not knowing the name of the assailant. Later on, they came to know that he was the son of Chhote Munda. Even then they could not locate the name of this appellant. Informant (P.W. 5) is very specific that he had not named this appellant Firangi Munda to the I.O. who recorded his fardbeyan. Similar is the evidence of P.W.3 and P.W. 7. P.W. 7 has deposed that he does not identify this appellant Firangi Munda @ Firangi Topno. P.W. 3, another labourer Sanichar Kharia, has deposed that this appellant gave axe blow on the head of Jamadar Singh and fled away on cycle along with axe. He has deposed that Jamadar Singh was visible from the place from where they were harvesting the paddy crops. He claims to identify the assailant assaulting and fleeing away. He has given a new story that while they were harvesting paddy crops, then they saw manager Jamadar. Singh running away. They also ran thereafter. By that time when they reached at the place of occurrence, assailant had fled away. He is very specific in para. 7 that he did not see appellant Firangi Munda assaulting Jamadar Singh. 8. When the evidence of eyewitnesses- P.W. 3, P.W. 5, and P.W. 7, who were harvesting at the place of occurrence, is considered, then I find that none of them are eyewitnesses. They have not seen this appellant assaulting Jamadar Singh @ Ramashish Singh. P.W. 5 (informant) and P.W. 6 have been declared hostile. But P.W.3 Sanichar Kharia has given a different story that Jamadar was running away, then they also rushed there running. By that time, appellant assaulted him and fled away on cycle. He has deposed that he did not see this appellant assaulting. The other eyewitnesses-P.W. 3 and P.W. 5 were not knowing the name of this appellant as assailant. 9. The other witnesses are either formal witnesses who are P.W. 1 and P.W. 2 who have proved formal FI R (Ext. He has deposed that he did not see this appellant assaulting. The other eyewitnesses-P.W. 3 and P.W. 5 were not knowing the name of this appellant as assailant. 9. The other witnesses are either formal witnesses who are P.W. 1 and P.W. 2 who have proved formal FI R (Ext. 1) and P.W. 2 simply signed on the fardbeyan (Ext. 1/1), who was informed by Sanichaf Domara that Firangi Munda murdered Jamadar Singh @ Ramashish Singh. But P.W. 5 Sanichar Domara himself was not knowing the name of the assailant nor he had seen assaulting Jamadar Singh by this appellant and is a hostile witness. P.W. 4 Chhabi Nath Ohdar simply took truck to carry the injured upto hospital. He has deposed that injured Jamadar Singh was unconscious who died on the same day i.e. 20.10.1985 at 11.00 p.m. night. P.W. 6 Fudo Devi, wife of the deceased, simply saw the dead body in the morning of 21.10.1985 at 7.00 a.m. She was informed by one boy Manta that her husband was murdered but he did not disclose the name of the assailant to her. P.W. 8 Gulab Choudhary, the landlord, has deposed that on 20.10.1985 Jamadar Singh @ Ramashish Singh had gone to harvest the paddy crops taking three labourers Sanichar Kharia (P.W. 3), P.W. 5 informant Sanichar Domara and P.W. 7 Budhram Oraon. At about 1.30 p.m. Rajesh informed that Jamadar Singh was astaulted with axe by Firangi Munda who was unconscious. Rajesh has not been examined in this case and was not present at the paddy field or place of occurrence as per fardbeyan of the informant. At about 1.30 p.m. Rajesh informed that Jamadar Singh was astaulted with axe by Firangi Munda who was unconscious. Rajesh has not been examined in this case and was not present at the paddy field or place of occurrence as per fardbeyan of the informant. This witness P.W. 8 has stated that on the same night at 11 .30 p.m., the injured manager Jamadar Singh @ Ramashish Singh died in the hospital, but as to what happened to the dead body whether it was sent for post mortem examination or whether any FIR was lodged or fardbeyan was recorded at the hospital is not clear due to non-examination of the I.O., 10, When considered the evidence of the independent eyewitnesses who are labourers, I find that they have not established the place of occurrence where Jamadar Singh @ Ramashish Singh was actually assaulted with axe resulting profuse bleeding, There is no evidence that any bloodstained soil was seized from the PIO or as to whether Jamadar Singh was sitting on a ridge and was reading books who was visible to the labourers who were three in number. As per PW 3 Sanichar Kharia, Jamadar Singh was running. All the three labourers also rushed there. They have not seen this appellant assaulting, rather they claim that one boy fled away on cycle taking axe. They were not knowing the name of this appellant nor they identified him in course of trial. 11. When the pros and cons of the prosecution case is considered, I find that none of the alleged eyewitnesses have seen the alleged occurrence, nor they were knowing the name of the assailant. They simply saw one boy who fled away on cycle along with Tangi after assaulting Jamadar Singh @ Ramashish Singh. The manner of the alleged assault also could not be proved in absence of non-examination of the doctor who conducted autopsy. The learned Court below has not considered the evidence available on record and has arrived at an erroneous conclusion in convicting this appellant without any legal and cogent evidence. Hence, the order of conviction and sentence passed by the learned Court below cannot be sustained. 12. In the result, this criminal appeal is allowed and the accused-appellant is acquitted. The order of conviction and sentence passed by the learned Cool below in Sessions trial No. 295 of 1986 is set aside. Hence, the order of conviction and sentence passed by the learned Court below cannot be sustained. 12. In the result, this criminal appeal is allowed and the accused-appellant is acquitted. The order of conviction and sentence passed by the learned Cool below in Sessions trial No. 295 of 1986 is set aside. As the appellant is on bail, he is discharged from the liability of the bail bond furnished in this case. S.J. Mukhopadhaya, J.-I agree.