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2006 DIGILAW 133 (JHR)

Boila alias Baila Hembrom v. State of Jharkhand

2006-02-20

M.Y.EQBAL, N.DHINAKAR

body2006
By Court The appellants, in this appeal, will be referred as A-1 and A-3 to A-6 in the order, they were arrayed before the Sessions Judge, Pakur. They were tried under Sections 147, 342, 302/149 of the Indian Penal Code, on the allegation that on the night of 21/22.11.1982 they wrongfully restrained the deceased Phoga Soren and thereafter caused injury, as a result of which the said Phoga Soren died and the Trial Judge accepting the prosecution version, as evidenced by the oral and documentary evidence, found the appellants guilty and sentenced each one of them to imprisonment for life under Section 302 of the Indian Penal Code. He also sentenced each one of the appellants to one year imprisonment under Section 147 of the Indian Penal Code but did not award any separate sentence under Section 342 of the Indian Penal Code. The present appeal from the Jail is against the said conviction and sentence. 2. The facts, which can be briefly summarized, are as follows: Phoga Soren, the deceased in the case, is the husband of Lupsi Hembrom, who was examined as PW-1. It is the case of the prosecution that there were 145 Cr.P.C. proceeding pending between the appellants' group and the deceased group. On the evening of 21.11.1982 the villagers and Phoga Soren went to Ranipur to take Handia (illegally prepared grume). At about midnight PW 1 Lupsi Hembrom, wife of the deceased, heard some noise emanating. She, therefore, came out of the house, accompanied by her daughter PW 4 Marangmai Soren. She found inside the house of the 1st accused Boila alias Baila Hembrom her husband with his hands tied. She found all the accused beating him with boulders. She saw Sanatan Hembrom, A-5, beating him with Bhala and Baburam Murmu, A-4 beating him with Lathi. The 3rd accused Baija alias Baja Murmu threatened PW 1 that she will also be done to death. She returned to the house and later, informed PW 2 Missir Soren, Pradhan of the village. On 22.11.1982 Fard Beyan (Ext. 3) was given at 1.00 p.m., which was registered as a formal First Information Report and the same stands- marked as Ext. 1. The investigation was taken up by PW 9, who conducted inquest over the dead body. The same is Ext. 4. After the inquest, the body was sent to the hospital with a request to conduct autopsy. 3) was given at 1.00 p.m., which was registered as a formal First Information Report and the same stands- marked as Ext. 1. The investigation was taken up by PW 9, who conducted inquest over the dead body. The same is Ext. 4. After the inquest, the body was sent to the hospital with a request to conduct autopsy. On receipt of the requisition, PW 6 Dr. Ramesh Chandra Jaiswal conducted autopsy on the dead body of the deceased Phoga Soren and he found the following injuries: (i) One incised wound on the forehead 11/2" x 1/2 x bone deep; (ii) One lacerated wound on the right side of scalp; (iii) Bruise and lacerations all over chest, right shoulder; (iv) Compound fracture of left tibia and fibula and the middle and lower end; (v) Compound fracture of 3rd and 4th cervical vertebrae. The doctor issued Ext. 2, the Post Mortem Certificate. In his opinion, the death would have been on account of cardiac and respiratory failure on account of shock, which would have been on account of the fracture of 3rd and 4th cervical vertebrae. 3. The Investigating Officer continued with his investigation, examined witnesses and, thereafter, filed the final report. 4. When the appellants were examined under Section 313 Cr.P.C., they denied all the incriminating circumstances. They examined two witnesses as D.Ws. 1 and 2. DW 1, Rupatan Murmu son of Baburam Murmu, in his evidence stated that on the day of the incident, he and the deceased alongwith DW 2 Jharu Soren were returning from Ranipur after taking drinks and that at about 2.30 a.m. on 22.11.1982 a quarrel ensued between him and the deceased Phoga Soren and that the deceased Phoga Soren assaulted him with Lathi, causing injury. He has further stated that he became unconscious and regained consciousness only in the evening of 23.11.1982. DW 2 also supported the evidence of DW 1. 5. Mr. Prashant Pallava, appearing as Amicus Curiae, strenuously contends that the prosecution did not come out with the true version before the court and the only evidence of PW 1 is to be discredited in view of her earlier statement in the Faro Beyan. It is his further submission that the Fard Beyan (Ext. 5. Mr. Prashant Pallava, appearing as Amicus Curiae, strenuously contends that the prosecution did not come out with the true version before the court and the only evidence of PW 1 is to be discredited in view of her earlier statement in the Faro Beyan. It is his further submission that the Fard Beyan (Ext. 3) could not be the real Fard Beyan and there must have been another complaint, given by her at the police station and the same had been suppressed and that the present Ext. 3 must have been prepared at the instance of PW 2 Missir Soren, who is the village Pradhan. 6. On the above contentions, we have heard Mr. I.N. Gupta, appearing for the State. 7. The case of the prosecution is that on the evening of 21.11.1982 the villagers and the deceased Phoga Soren went to Ranipur to take Handia, an illegally prepared grume. It is the further case of the prosecution through the evidence of PW 1 that on the night of 21/22.11.1982 PW 1, wife of the deceased, heard the cries, came out of the house and went to the house of 1st accused Boila alias Baila Hembrom, where she found her husband with hands tied. It is the further case of the prosecution, that could be seen from the evidence of PW 1, that her husband was beaten by the 3rd accused Baija alias Baja Murmu, 4th accused Baburam Murmu and 5th accused Sanatan Hembrom and that she went and informed Missir Soren PW 2, the village Pradhan. She has further deposed that she went to the police station and informed and later, the officer arrived at the scene of the occurrence and the Fard Beyan (Ext. 3) was registered at 1.00 p.m. on 22.11.1982. 8. We have now to consider whether the deceased died on account of homicidal violence. The said fact is not in dispute as the same stands proved through the doctor PW 6 and the Post Mortem Certificate, issued by him. We, therefore, hold that the deceased died on account of homicidal violence. 9. The evidence of PW 1, we may say even at the outset, does not inspire confidence in our mind. The said fact is not in dispute as the same stands proved through the doctor PW 6 and the Post Mortem Certificate, issued by him. We, therefore, hold that the deceased died on account of homicidal violence. 9. The evidence of PW 1, we may say even at the outset, does not inspire confidence in our mind. It is the case of the prosecution that the deceased went alongwith other villagers to Ranipur to take Handia and that on the night on hearing Hulla, PW 1 went to the house of the 1st accused and found her husband with hands tied. We are unable to understand as to why the prosecution did not choose to examine any of the villagers to prove the said fact. We are fully aware that no particular numbers of witnesses are required to prove a fact. But on the facts of this case, we find that when the prosecution had come out with a version that the occurrence had taken place on the night and that PW 1 went to the house of the 1st accused on hearing cries, it is but natural that the Court will infer that the other villagers must have also gone alongwith PW 1. PW 1 though stated in her evidence that. she saw her husband in the house of the 1st accused with his hands tied, she has no such case in the Fard Beyan, when she gave the Fard Beyan (Ext. 3), since' in the said Fard Beyan, she has stated that she saw her husband in front of the house of the Matal Tudu. If as claimed by her in the evidence that her deceased husband was seen in the house of the 1st accused, then that must have been fresh in her mind when she allegedly gave the statement to the police at 1.00 p.m. 10. In this background, we have now to consider the evidence of PW-1, as to whether the said Ext. 3, Fard Beyan, could be the real statement given by her or whether it must have been prepared at a later point of time after suppressing the initial complaint given by her to the police. 11. PW-1 stated on oath that after the incident, she went to the police and gave statement. 3, Fard Beyan, could be the real statement given by her or whether it must have been prepared at a later point of time after suppressing the initial complaint given by her to the police. 11. PW-1 stated on oath that after the incident, she went to the police and gave statement. She has further deposed that she returned to the village and thereafter took PW-2, Missir Saren, village Pradhan, with her to the police station and later the Police Officer came to the scene of the occurrence and recorded the statement given by her. The above evidence of PW-1, therefore, shows that PW-1 went to the police station and gave statement and as it was not recorded by the officer, she was forced to come back to the village to take village Pradhan to the police station and only thereafter the police came to the scene and recorded the statement. This shows that the earliest statement given by PW-1 to the police officer was not recorded and probably, in our view, the said statement had been suppressed as it was found to be not in tune with the present prosecution. At this stage, we cannot but remember the fact that the complaint, which was registered as a formal FIR on 22.11.1982, was actually received by the Magistrate on 25.11.1982. It is no doubt true that mere delay in sending the FIR and its receipt by the Magistrate could not be fatal on the facts and circumstances of a given case, but on the facts of this case, we have already noticed that there must have been another complaint by PW-1, which had been suppressed and thereafter Fard Beyan, Ext. 3, was prepared, only at the intervention of PW-2, village Pradhan. 12. At this stage, we have to remember that we have already held that the evidence of PW-1 is highly artificial and also contradictory to the version given by her at the earliest point of time. 13. 3, was prepared, only at the intervention of PW-2, village Pradhan. 12. At this stage, we have to remember that we have already held that the evidence of PW-1 is highly artificial and also contradictory to the version given by her at the earliest point of time. 13. The non-examination of other witnesses, who were admittedly present in the village, the evidence of PW-1 that the statement given to the police was not recorded when she allegedly went to the police station, non-explanation of the delay in sending the FIR and its receipt at the hands of the Magistrate and in the absence of any motive for the accused to attack the deceased, show that the present case, as attempted to be brought 0 It through PW-1, is highly unsatisfactory. We, therefore, find it difficult to accept the evidence of PW-1, in the above background. 14. We, accordingly, allow the appeal by setting aside the conviction and sentence imposed upon the appellants. The appellants, who are on bail, are discharged from the liability of bail bonds.