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2007 DIGILAW 667 (JHR)

Shyam Besra v. State of Bihar (Now Jharkhand)

2007-08-20

D.K.SINHA, D.P.SINGH

body2007
JUDGMENT By Court.-The Sole appellant Shyam" Besra has preferred this appeal against the judgment of conviction and order of sentence" dated 14.8.2000 and 16.8.2000 passed by 6th Additional Sessions Judge, Dumka in Sessions Case No. 172 of 1998 whereby and whereunder the appellant has been convicted under section 302 of the Indian Penal Code and sentenced to undergo R.I. for life. 2. Brief facts leading to this appeal are that in" the evening of 7.4.1998 the deceased Jetha Besra was being awaited by the informant in her house. Further alleged at about 8.p.m. she heard alarm raised by the deceased on which she came out of the house alongwith P.W. 1 and P.W. 4 carrying a torch to find that the appellant was assaulting her husband with "Katu" heavy sharp cutting weapon on the village road in front of the house of Ganga Murmu. The appellant assaulted the deceased several times and fled away. The informant raised " alarm on which many persons arrived and brought the deceased for his treatment at Sadar Hospital, Oumka. The deceased Jetha Besra succumbed to his injuries during treatment at the hospital. According to the informant the appellant has committed murder of his own brother because of dispute for family partition. 3. The police arrived at Dumka Sadar Hospital and recorded her statement at 22.15 hours same day and registered Dumka P.S. Case No. 41 of 1998 under section 302 of the Indian Penal Code. The police investigated the case, got the post mortem examination conducted and finally submitted charge-sheet against the appellant. The appellant was arrested next day who pleaded not guilty and claimed false prosecution. However the learned trial court after examining the witnesses found and held him guilty for the offence and sentenced him to serve R.I. for life. 4. The appellant has remained in custody throughout. The present appeal has been preferred mainly on the grounds that the learned trial court has failed to consider the improbability of the prosecution case. It is also asserted that the investigation was not conducted properly. The counsel for the appellant did not appear at the time of the hearing of the appeal. The appellant has remained in custody throughout. The present appeal has been preferred mainly on the grounds that the learned trial court has failed to consider the improbability of the prosecution case. It is also asserted that the investigation was not conducted properly. The counsel for the appellant did not appear at the time of the hearing of the appeal. Therefore, Sri G.C. Sahu was appointed amicus curiae to assist the court on behalf of the appellant who has submitted that the learned trial court has committed mistakes by accepting the sole statement of P.W. 3, the informant in spite of all the witnesses being declared hostile, as they did not support the prosecution case. Sri Sahu further pointed out that as per informant her husband was assaulted with sharp cutting weapon but the post mortem report mentions injuries no. 1 caused by hard and blunt substance. According to Sri Sahu the prosecution has not been able to prove the case beyond all reasonable doubts particularly the manner in which the assault took place. Sri Sahu further stressed that the identification of the appellant is not proved beyond doubts because none of the witnesses except P.w. 3 has asserted that the assault was committed by the appellant. 5. We have anxiously gone through the materials on record to appreciate the submissions made on behalf of the appellant. The prosecution' has examined altogether 13 witnesses out of which P.W. 8 Dr. VK. Sinha conducted the post mortem examination on dead body of Jetha Besra. The P.M. report has been marked as Ext. 3 for the prosecution. P.W. 12 Madhu Kachhap S.I Police has only submitted the charge-sheet whereas P.W. 13 Arun Kumar has' conducted the investigation. P.Ws. 5, 6, 7, 9 and 10 have been declared hostile by the prosecution because they did not support the prosecution case. They have refused to name the appellant as assailant. P.W. 2 Pradhan Besra has proved his signature on the inquest report Ext.-2 prepared by the police. P.W. 4 Shiv Charan Besra is another witness on the inquest report vide Ext.-2/1 but he did not claim that he has seen the' appellant assaulting the deceased and this leaves us With the evidence of P.Ws. 13 and 11 the sons and wife of the deceased. P.W. 4 Shiv Charan Besra is another witness on the inquest report vide Ext.-2/1 but he did not claim that he has seen the' appellant assaulting the deceased and this leaves us With the evidence of P.Ws. 13 and 11 the sons and wife of the deceased. P.W. 11 Rajesh Besra is hearsay witness of the occurrence because he was not present in the house in the night of 7 A.1998. 6. P.W. 1 Ramu Besra who accompanied his mother on alarm raised by his father asserted that she saw his father lying injured where the appellant was standing with the weapon in his hand. During cross-examination this witness has admitted that. at the time of the occurrence the night was moonlit and in his house six tenants as well as 3 persons P.Ws. 1, 3 and 4 were present. Further this witness in para 8 admitted that when he came back at 6 p.m. from the market he took meal and slept. He, further admitted in para 12 that when he arrived at the place of occurrence on alarm raised by him he found his father lying injured. He further admitted in para 13 that he did not try to catch hold the appellant and vide para 14 that family dispute was continuing between the appellant and the deceased. P.W. 3 Bahalin Marandi supported her earlier version in the examination-in-chief. However this witness has admitted during cross-examination that she cannot say what lands belong to the family and for which there was dispute between the deceased and the appellant. She came out of the house hearing alarm raised by her husband and saw the appellant standing there alone. However in the next para 15 she admitted that she could see one person fleeing from the place of occurrence but did not know who he was She contradicted her earlier statement by admitting that night was of moonlit and because of tree it was dark. She has admitted in para 13 that P.W. 1 and P.W. 4 came after her at the place of occurrence. She has claimed to identify the appellant vide para 2 in the light of torch. However this torch has not been brought before the I.O. P.W. 13. 7. She has admitted in para 13 that P.W. 1 and P.W. 4 came after her at the place of occurrence. She has claimed to identify the appellant vide para 2 in the light of torch. However this torch has not been brought before the I.O. P.W. 13. 7. P.W. 13 has proved the fardbeyan, FIR as Ext.-4 and admitted in para 3 that due to night he could not inspect the place of occurrence same night. He visited at the place of occurrence next morning and find blood fallen on the earth. He prepared the inquest report vide Ext.-6. He further contradicted PWs. 4, 5, 6, 7, 9 and 10. However he has admitted vide para 15 that he did not examine the persons whose house was situated near the place of occurrence neither he tried to recover the weapon of assault. He has not seen the papers regarding the properties for which alleged dispute was continuing between the appellant and the deceased which shows that the investigation was not made in proper manner. 8. The learned amicus curiae has submitted that even if the sole testimony of P.W. 3 is accepted as discussed by the learned trial court in para 20, the medical report does not support the manner in which the assault has been made. Our attention was drawn that P.W. 1 son of the deceased has admitted that when he came out of the house he found his father lying injured and in that circumstances he could not have seen the assault actually taking place. Our attention was further drawn towards the admission of P.w. 3 vide para 13 that P.W. 1 and P.W. 4 came after her. Our attention is drawn towards the fact that although dispute for family properties was alleged to be reason behind this occurrence, no document has been produced in support of it. Counsel for the appellant further pointed out that in absence of the torch produced before the 1.0. as well as admitted by pw. 3 vide para 15 that the place of occurrence was dark due to shadow of tree makes the whole story doubtful. 9. On careful consideration of the facts and circumstances discussed above, we find that the learned trial court has convicted the appellant relying upon the sole testimony of P.W. 3 the informant. as well as admitted by pw. 3 vide para 15 that the place of occurrence was dark due to shadow of tree makes the whole story doubtful. 9. On careful consideration of the facts and circumstances discussed above, we find that the learned trial court has convicted the appellant relying upon the sole testimony of P.W. 3 the informant. This witness has admitted during cross- examination that when she came out on hearing the alarm raised by her husband, she saw one person fleeing from the place of occurrence but she did not name rather she asserted that appellant has assaulted her husband. The place of occurrence is situated on a village road in the evening of 7.4.1998 where• many houses are situated. The I.O. has admitted that he did not examine any of the inmates of the house situated near the place of occurrence. It has also come on record that the house of the informant and the appellant was existed side by side and the occurrence took place at a distance of 25 cubits on the village road. The other witnesses who supported the prosecution case before the I.O., P.Ws. 4, 5, 6, 7, 9 and 10 commonly related with the appellant and the deceased, have preferred not to name the appellant as the assailant. Even PWs. 1 and 11 have named the appellant as assailant as hearsay witness. The genesis of the occurrence, family dispute between the deceased and the appellant has not been brought properly on record. We further find that the injury no. 1 caused by hard and blunt substance resulting in fracture of parietal bone vide Ext.-3 has not been properly explained. If Katu a heavy sharp cutting weapon is used, such injury was not possible while other injuries are possible. The post mortem report further mentions that death has occurred within 24 hours. The post mortem examination conducted at 8.40 a.m. on 8.4.1998, it was within 48 hours. If the prosecution case is accepted then the post mortem report should have mention it within 12 to 18 hours. 10. Having considered the facts and circumstances, discussed above, we find that the prosecution version cannot be accepted as true on the solitary testimony of P.W. 3 particularly when family dispute regarding properties has been alleged to be the genesis of the occurrence. 11. 10. Having considered the facts and circumstances, discussed above, we find that the prosecution version cannot be accepted as true on the solitary testimony of P.W. 3 particularly when family dispute regarding properties has been alleged to be the genesis of the occurrence. 11. Accordingly, we find and hold that the present appeal has got merit in it and deserves to be allowed. In the result, this appeal is allowed. The judgment of conviction by the trial court passed against the appellant is set aside and the appellant is acquitted of the charge levelled against him. Since the appellant is in jail custody, he is directed to be set free forthwith, if not wanted in any other case.