Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 109 (JHR)

Soyoto @ Sursen Bhengra v. State of Bihar

2009-01-22

PRASHANT KUMAR, R.K.MERATHIA

body2009
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 27.8.1999, passed by Shri Tarkeshwar Prasad, learned Sessions Judge, Gumla, in essions Trial No. 89 of 1996, whereby and whereunder he convicted the appellant under Section 302/34 and also under Section 201 of the Indian Penal Code ( hereinafter referred to I.P.C.) and sentenced him to undergo rigorous imprisonment for life under Section 302/34 I.P.C. and 4 years under Section 201 I.P.C. 2. The story of prosecution, in short, as per Fardbeyan of P.W-1-Jaiwanti Devi, is that on 3.12.1995, the husband of the informant namely Sugarh Kandulna had gone to Kulburu market along with the appellant and one Tipra @ Turtant Topno. It is further alleged that Tipra and this appellant returned in the village in the evening but the husband of the informant did not return. It is further stated that when the informant asked the appellant and his companion, they did not give any satisfactory answer and because of that informant suspected that they have committed some foul. It is further alleged that thereafter the informant along with other villagers searched her husband and later on 5.12.1995, the dead body of her husband was found in the north of Kuluburu market. It is also stated that the place where dead body was found, some trail mark was found and from that it appears that the occurrence might have taken place at some other place and lateron the dead body was brought to the place from where it was recovered. On the basis of the aforesaid Fardbeyan, the present case was instituted against the appellant and Tipra. 3. It appears that after completing the investigation, police submitted charge-sheet against the appellant and co accused-Tipra under Section 302/34 I.P.C. and also under Section 201 of the I.P.C. for concealing of evidence. It further appears that learned Chief Judicial Magistrate after taking cognizance has committed the case to the court of sessions as the offence under Section 302 I.P.C. is exclusively triable by the court of sessions. It appears that the court below vide order dated 27.4.1996 framed charge against both the accused persons under Section 302/34 I.P.C. and also under Section 201 I.P.C. The said charges were explained to the accused persons, to which they pleaded not guilty and claimed to be tried. It appears that the court below vide order dated 27.4.1996 framed charge against both the accused persons under Section 302/34 I.P.C. and also under Section 201 I.P.C. The said charges were explained to the accused persons, to which they pleaded not guilty and claimed to be tried. Thereafter it appears that co-accused-Tipra @ Turtant Topno absconded from the court below and accordingly his case was split up vide order dated 4.8.1999 under Section 317 of the Code of Criminal Procedure. It then appears that in the court below, altogether 11 witnesses have been examined, out of whom, P.W-1 to 4, 6 and 8 are witnesses of facts. P.W. 5 and 7 are formal witnesses, who had proved Ext.-2, 2/2 and 2/3 respectively. P.W-9 has been tendered for cross-examination. P.W-10 is the doctor, who has conducted autopsy. P.W-11 is the formal witness, who has proved Exts-4 and 5. It appears that the court below after considering the evidence available on record convicted the appellant by the impugned judgment, as stated above. Against that, the present appeal has been filed. 4. It is submitted by Shri Ram Kishore Prasad, learned counsel for the appellant, that there is absolutely no direct evidence against this appellant. It is further submitted that the witnesses have only cast suspicion against the appellant. Accordingly, it is submitted that only on the basis of suspicion, the appellant cannot be convicted. Hence, it is submitted that the appellant be acquitted from the charges leveled against him. 5. Learned Additional P.P. has opposed the submission advanced by learned counsel for the appellant and submitted that P.W-3 has stated that this appellant along with co-accused-Tipra had stated that they have killed the deceased-Sugarh Kandulana. Accordingly, he submitted that since there is an extra judicial confession, the court below had rightly convicted the appellant. Thus, it is submitted that impugned judgment does not require any interference by this Court. 6. Having heard the submissions, we have gone through the evidence available on record. From perusal of evidence of P.W-1,2,3 and 4, we find that they have specifically stated in their evidence that they have not seen the occurrence from their own eyes. They have only casts suspicion against the appellant and co accused, because the deceased had gone to the market along with them. From perusal of evidence of P.W-1,2,3 and 4, we find that they have specifically stated in their evidence that they have not seen the occurrence from their own eyes. They have only casts suspicion against the appellant and co accused, because the deceased had gone to the market along with them. P.W-4 also stated that co accused-Tipra tried to enter in his house with intention to misbehave with his daughter, however, when his daughter raised alarm, he fled away. Accordingly, he suspects that because of that reason, they have killed Sugarh Kandulana. Thus, from the above evidence, it is clear that there is no direct evidence against the appellant and the co-accused-Tipra and it appears that they have been implicated in this case merely on suspicion. 7. So far as the extra judicial confession is concerned, it is not disclosed by P.W-3 as to where, the appellant and his accomplice had confessed their guilt. It is also not stated by P.W-3 that in front of whom, they have stated so. Thus, we find it difficult to believe the aforesaid story of extra judicial confession. Since from perusal of the record, we find that there is no direct evidence against this appellant that he along with his accomplice have committed the present crime, thus we are of the view that prosecution has not proved the charges level against the appellant beyond the shadow of all reasonable doubt. Therefore, we are of the view that the appellant deserves benefit of doubt. 8. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence dated 27.8.1999, passed by learned Sessions Judge, Gumla, in Sessions Trial No. 89 of 1996, is set aside. The appellant is acquitted from the charges leveled against him. Since the appellant is still in custody, we direct that he must be released forthwith, if not wanted in any other case.