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2006 DIGILAW 1367 (JHR)

Kalinder Naik v. State of Bihar

2006-11-28

AMARESHWAR SAHAY, R.K.MERATHIA

body2006
Judgment By Court.-AII the abovementioned three criminal appeals arise out of the same impugned judgment dated 28.9.2000 passed by the Sessions Judge, Singhbhum (West) at Chaibasa in Sessions Trial No.134 of 1999 and, therefore, they were taken up and heard together and are being disposed of by this common judgment. 2. All the appellants in the above three appeals have been convicted under section 302/34 of the Indian Penal Code and have been sentenced to undergo R.I. for life. 3. Brief facts leading to these appeals are that one Jitender Paik, the informant (PW-2) gave a fardbeyan to the police on 14.10.1998 at 5.00 A.M. stating that on the previous day, i.e. 14.10.1998 he alongwith his brother Ganeshwar Paik (the deceased) and Prasanno Paik (not examined) was returning from Anandpur Market at about 6.00 P.M. His brother Ganeshwar Paik started for the village via Satbamri Kutcha road on foot whereas he proceeded with his brother Prasanno Paik for his village via Charbandia pucca road on a bicycle. It was further alleged that seeing that his brother Ganeshwar was going via kutcha road, his co-villagers Sashi Naik, Kalinder Naik proceeded through Charbandia, quickly proceeded ahead on their bicycle. When the informant reached near the well and the orchard of Bandhu Mukhia, he saw Sashi Naik and Kalinder Naik talking with other co-villagers, who were already there armed with Tangi, Bows and Arrows etc. namely, Kale Pradhan, Santru Naik, Sukh Chinder Paik, Etwa Pradhan, Lumbu Paik, Ganshu Bhitria and told them that Ganeshwar Paik was coming via Satbamri Kutcha road and, thereafter, all the abovenamed villagers went towards Chiromatta kutch a road and, thereafter he and his brother Prasanno went to their house to bring bows and arrows to save themselves and their brother but only after a few yards away, both of them heard the alarm of his brother, then they ran towards their brother and then saw that the accused persons had killed his brother cutting his head from the body and seeing them they fled away towards Toongri south-east. 4. The reason for the occurrence was stated to be that their nephew Damodar Paik was taken by Etwa Pradhan and Lumbu Paik to Punjab to earn livelihood but he did not return though Etwa and Lumbu returned to the village and for that a Panchayati was convened so that both be compelled to bring back the said nephew. 4. The reason for the occurrence was stated to be that their nephew Damodar Paik was taken by Etwa Pradhan and Lumbu Paik to Punjab to earn livelihood but he did not return though Etwa and Lumbu returned to the village and for that a Panchayati was convened so that both be compelled to bring back the said nephew. It was also said that there was some land dispute also. 5. The defence case was of false implication at the instance of the interested persons of the village. It was also pleaded that the deceased was not a person of the good character and he was ousted from the society and for taking revenge, the accused persons were implicated in a false case. 6. In order to establish the charges altogether five witnesses were examined on behalf of the prosecution. PW-1 is Garjan Paik, who is a formal witness and he proved the seizure of two arrows and he also proved his signature on the inquest report. PW-2 Jitendra @ Jitu Paik is the informant. PW-3 Parwati Devi is the widow of the deceased and she claimed herself to be an eye witness to the occurrence. PW-4 is the Investigating Officer and PW5 is the Doctor, who conducted the post mortem examination of the deceased. 7. Mr. Ramit Satender, learned counsel appearing for the appellants in Cr. Appeal Nos. 431 of 2000 and 426 of 2000 and Mr. Mahesh Kumar Sinha, learned counsel appearing for the appellant in Cr. Appeal No. 387/2000 vehemently argued that the prosecution has miserably failed to establish the charges against the appellants beyonds all reasonable doubts and, therefore, their conviction and sentence, passed against them is bad in law. It was contended that as per the statement of the informant made in the FIR, the witness PW-3 Parwati Devi, widow of the deceased, was not an eye witness to the occurrence since she was not named as such in the FIR but in course of trial she has posed herself to be an eye witness to the occurrence. It was contended that as per the statement of the informant made in the FIR, the witness PW-3 Parwati Devi, widow of the deceased, was not an eye witness to the occurrence since she was not named as such in the FIR but in course of trial she has posed herself to be an eye witness to the occurrence. It was further submitted that in fact Parwati Devi (PW-3) the so-called eye witness has made statement contrary to the statement of PW-2 the informant in all material particulars and, therefore, the statements of PW-2 and PW-3 both are liable to be rejected outrightly and, if their evidence is rejected then nothing remains on the record to sustain the conviction and sentence against the appellant. 8. On a careful scrutiny of the evidence on record, we find that in the Fardbeyan it is not mentioned that the wife of the deceased, i.e. PW-3 was also either accompany the informant or the deceased to the market or that she was returning from the market with her husband on foot. It further appears that in para-3 of her evidence PW-3 has stated that altogether eight persons assaulted her husband and all the accused persons assaulted him with their weapons one by one. Four accused were having Tangi and four accused were having Balua and she witnessed the entire assault made by them from a distance of 57 cubits. From the evidence of the Doctor (PW-5) it appears that neither any injury of arrow or any other external injury was found on the person of the deceased except that the neck of the deceased was separated completely in its middle part by the incised wound. Therefore, the evidence of PW-3 does not fitting at all with the medical evidence and the nature of injuries, which were found on the person of the deceased. It further appears that she stated in her evidence that her Devar Jitu and Bhaisur Prasanno reached at the place of occurrence on her hulla but by the time they reached, her husband was already dead and the accused persons had already fled away. All the abovenoticed statements of PW-3 do not fit in with the prosecution case and it is against the medical evidence as well as against the materials on record therefore, it is not safe to rely on her evidence. All the abovenoticed statements of PW-3 do not fit in with the prosecution case and it is against the medical evidence as well as against the materials on record therefore, it is not safe to rely on her evidence. She in her evidence has also stated the time of occurrence to be about 4.00 PM. whereas in the fardbeyan the informant has stated the time of occurrence to be about 7.00 PM. therefore, on this score also her evidence becomes doubtful. 9. The informant (PW-2) has stated that on 13.10.1998, i.e. on the date of occurrence they started returning from the Bazar at about 5.00 PM. and it has come in the evidence of the prosecution that from Anandpur Market the village home of the deceased was about 4 miles and the time of alleged occurrence as per his statement was 7.00 PM. Nothing has come on the record as to how the appellants could identify the assailant of the deceased at that time of occurrence at 7.00 PM. It is common knowledge that in the month of October at 7.00 PM. it becomes dark and nothing has come on the record that there was any other source of light so that the witnesses could have identified the appellants at that time. PW-2 the informant though did not name Parwati Devi (PW-3) as an eye witness to the occurrence in the fardbeyan but in course of trial he introduced a new story that Parwati Devi was also accompanied the deceased while returning from Bazar. This witness also stated that the appellants Kalinder Naik firstly shot arrow on Ganeshwar Paik thereafter, Shashi Naik and Etwa Pradhan shot arrows on Ganeshwar. Ganeshwar after receiving arrows injury fell on the ground and, thereafter, Kale Pradhan, Lumbu Paik and Shantru Naik assaulted him with Balua and Tangi thereafter, Ganshu Bhitria cut his neck and beheaded him. 10. It is also important to note that according to the informant PW-2, Parwati Devi (PW-3) and Prasanno Paik were also with the deceased when he was coming back from the market. Therefore, Prasanno was also an eye witness to the occurrence but curiously enough the prosecution has not chosen to examine the said Prasanno paik, who was an important witness to the occurrence. Therefore, the prosecution is also guilty of withholding of an important witness. 11. Therefore, Prasanno was also an eye witness to the occurrence but curiously enough the prosecution has not chosen to examine the said Prasanno paik, who was an important witness to the occurrence. Therefore, the prosecution is also guilty of withholding of an important witness. 11. In view of the discussions of the evidence of PW-2, PW-3 and PW-5, the evidence of the so-called eye witness, i.e. the informant (PW-2) and Parwati Devi (PW-3) do not inspire confidence and we feel that on such contradictory statements of PW-2 and PW-3, no reliance can be placed. 12. Therefore, we hold that the conviction and sentence passed against all the appellants by the trial court cannot be sustained. Accordingly, all the aforesaid three appeals are hereby allowed and the conviction and sentence passed against all the abovenamed appellants are hereby set aside. The appellant Kalinder Naik of Cr. Appeal No. 387 of 2000, who is on bail, is discharged from the liabilities of his bail bonds. The rest of the aforesaid appellants of Cr. Appeal Nos. 431 of 2000 and 426 of 2000, who are in custody, are directed to be released forthwith if not wanted in any other case.