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2008 DIGILAW 824 (JHR)

Dibu Marandi v. State of Bihar (Now Jharkhand)

2008-07-28

AMARESHWAR SAHAY, D.P.SINGH

body2008
JUDGMENT By Court.-This appeal is directed against the judgment of conviction and order of sentence dated 27.11.1 997 passed by Additional Sessions Judge, Pakur in Sessions Case No. 209/96/23/96, whereby and whereunder the learned court below held the appellant guilty under Section 302 IPC and sentenced him to undergo Rl for life. 2. Brief facts leading to this appeal are that in the morning of 24th May, 1996 the deceased Jono Marandi was getting some lands ploughed by PW-1 Jiwan Marandi situated in Mauja, Madgaon, P.S. Chakulia when appellant objected and asked the deceased and PW-1 not to plough the land. The deceased replied that the land in question has been obtained by him from PW-3, Lalu Marandi on batai. It is further stated that thereafter the appel is lant retorted and went back to his house. The informant, PW-8 returned from the fields to her house situated nearby while the deceased remained sitting on the ridge while PW-1 continued to plough. All of a sudden PW-8 heard alarm raised by PW-1 and ran to the place of occurrence to find that her husband was lying seriously in is jured in the field. She further saw the appellant carrying blood stained axe in his hand while PW-1 and PW-8 tried to catch hold of the appellant but who managed to flee away. The husband of the informant breathed his last on the spot. 3. The matter was reported to the Pakuria police, which arrived at the PO at 10 AM and recorded the statement of PW-8, on the basis of which Pakuria P.S. Case No. 12/86 under Section 302 IPC was registered against the appellant. The appellant was arrested by the police and one blood stained axe was recovered from his house. The police prepared inquest report of the dead body and seizure list of blood stained soil as well axe. The dead body was sent for post mortem report. Investigation was completed to finally sub is mit the charge-sheet against the appellant under Section 302 IPC. 4. The appellant pleaded not guilty and claimed to be tried. The trial court found and held the prosecution case true and convicted the appellant for the of is fence under Section 302 IPC and further sentenced him RI for life. The present appeal has been preferred mainly on the ground that there was no independent eye witness of the occurrence. The appellant pleaded not guilty and claimed to be tried. The trial court found and held the prosecution case true and convicted the appellant for the of is fence under Section 302 IPC and further sentenced him RI for life. The present appeal has been preferred mainly on the ground that there was no independent eye witness of the occurrence. It is further asserted that PW-8, the informant Parwati Tudu was not an eye witness of the occurrence. 5. The learned Amicus Curiae, appearing on behalf of the appellant submit is ted that in such circumstances. the learned trial court, having relied upon the sole eye witness PW-1, committed a mistake. It is further submitted that the prosecution could not bring on record any motive for this crime. According to him. all other wit is-nesses. PWs-2, 3. 4 and 5. are hearsay witnesses of the occurrence. The learned counsel further submitted that the investigation by PW-9 was not up to the mark as he has failed to get the blood stained soil as well as weapon of assault exam is in ed by forensic science laboratory to prove the case. According to him, the witnesses present near the PO have not supported the prosecution case. As such the appellant, Who has remained in custody from May, 96, may be acquitted of the charges. 6. The learned APP. on the contrary. supported the prosecution case. Accord is ing to him, the occurrence took place in the field where the deceased was getting the land ploughed by PW-1. It was further pointed out that the informant was in her house situated within 50 yards of the PO and came out of the house to find the appellant carrying axe, fleeing away from the PO. It was also pointed out that in such circumstances, the natural and probable witnesses have supported the prosecution case beyond all reasonable doubts. 7. We have gone through the materials on record to appreciate properly the submissions made by the learned Amicus Curiae. The prosecution has examined al is together 9 witnesses, out of which PW-3, Lalu' Marandi, PW-4, Jogathan Marandi, PW-5, Mahendra Hembram are hearsay witnesses of the occurrence. Lalu Marandi is the owner of the land, who was not available in the village at the time of occurence. However, he has supported the prosecution case that the land was being cultivated through the deceased for him. Lalu Marandi is the owner of the land, who was not available in the village at the time of occurence. However, he has supported the prosecution case that the land was being cultivated through the deceased for him. PWs-4 and 5 are witnesses of the inquest report and seizure list of blood stained soil as well as axe. They have only sup is ported that PWs-1 and 8 informed them that the appellant has assaulted the de is ceased. PW-2, Amin Murmu is said to be present near the PO at the time of occur is rence. He has stated in the examination is in-chief that PW-1 raised alarm that the appellant has killed the deceased immediately after the occurrence. Therefore, it appears that even PW-2 disclosed the name of appellant, as the assailant immediately after the occurrence. 8. PW-6 has been tendered. PW-7, Dr. B. Bhushan conducted the post mortem of the dead body of the deceased and got it proved as Ext. 2. According to him, the death occurred due to injury on the head caused by hard and blunt substance resulting tn fracture of the partial bone. The post mortem report, therefore, sup is ports the prosecution case that the de is ceased was assaulted with hard and blunt substance like axe. 9. PW-9, the 10 of the case, has supported the prosecution case regarding recording of the fardbeyan, preparation of inquest report and seizure of blood stained soil as well as the axe, vide Exts. 3, 4, 5, 6 and 7. He proved material Exts. 1 and 2, the axe and blood stained soil. 10. The sole eye witness, Jivan Marandi. PW-1, has supported the prosecution story in details. He has further supported PW-8 regarding the objection raised by the appellant with the deceased when he was ploughing the land. He further stated that PW-8 went back to her house after the appellant objected on ploughing of the land. He further stated that immediately thereafter the appellant went back to his house and came back with axe, while the deceased was stand is the on the ridge. According to him, all of a sudden the appellant assaulted the de is ceased with axe on his head, on which he raised alarm. According to him, on his alarm PW-8 and other villagers arrived there but the appellant managed to flee way. According to him, all of a sudden the appellant assaulted the de is ceased with axe on his head, on which he raised alarm. According to him, on his alarm PW-8 and other villagers arrived there but the appellant managed to flee way. He has stated that only one blow with axe was given by the appellant on the head of the deceased. He has been cross-exam is ined without any material to show that he has stated falsely, disputing his presence PO. He has been supported by PW-8 at length on materials aspects. Ac is cording to PW-8, when she came to her house after objection raised by the appellant regarding ploughing the land, her husband was sitting on the ridge. When she heard alarm raised by PW-1 she came out to see the appellant was fleeing with blood stained axe in his hand. 11. Sri Banerjee, learned Amicus Curiae. criticized the statements of these two witnesses stressing that PW-1 has stated that PW-2 was the eye witness of the occurrence, who has not supported the prosecution case. Sri Banerjee further pointed out that PW-8 has asserted in para-2 of her chief that she along-with PW is 1 tried to snatch the blood stained axe from the appellant. It was also pointed out that according to her version they went in the field without taking any breakfast but post mortem report says that some liquid was found in the intestine of the deceased. Sri Banerjee further criticized the 1.0. for not seizing the cloth 0f the deceased and sent it for forensic report. 12. The present case depends upon the statements of PWs-1 and 8, supported by PWs-2, 4 and 5, who immediately came after the occurrence and saw the deceased lying in the field with fatal injury on his head. Thus, the fact remains proved that the occurrence took place in the field where PW-1 was ploughing the land. PW-2 has also supported this aspect that immediately on the alarm raised by PW-1, he came to know that appellant has assaulted the deceased. PW-8, as natural and probable witness, came out from her house situated at 50 yards from the P.O. to see the appellant fleeing away from the P.O. with axe in his hand. 13. The defence could not bring on record any contradiction, which may be fatal to the prosecution case. PW-8, as natural and probable witness, came out from her house situated at 50 yards from the P.O. to see the appellant fleeing away from the P.O. with axe in his hand. 13. The defence could not bring on record any contradiction, which may be fatal to the prosecution case. The question of motive raised by the learned Amicus Curiae is of no consequences in the present facts, where the appellant has raised objection why the deceased was getting the land ploughed and immediately afterwards the occurrence took place. While going through the exhibits on record, we find that the inquest report mentions some tobacco was seen in the left palm of the deceased, which shows that when the deceased was sitting on the ridge, he was preparing tobacco (khaini) while the assault took place from behind. However, it is apparent that the appellant assaulted the deceased only once with the blunt portion of the axe, which unfortunately hit the skull of the deceased resulting in instantaneous death of the deceased. 14. Having considered all these facts and circumstances, we find and hold that the prosecution has been able to prove charge against the appellant that he has caused death of t:1e deceased in the manner alleged by the prosecution in the morning of 24.5.1996. However, it is apparent from the post mortem report and evidence of the witnesses that single blow was caused by the appellant on the deceacsed. 15. In such facts and circumstances, we find that the conviction and sentence of the appellant under Section 302 IPC cannot be maintained. Accordingly, the present appeal is allowed in part. The conviction and sentence of the appellant under Section 202 IPC is hereby set aside. However, the appellant is found and held guilty for the offence under Section 304(11) IPC. The appellant has already remained in custody for more than 12 years now. In the facts and circumstances, his period of sentence is modified to the period already undergone by him in custody. Since the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case.