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2009 DIGILAW 132 (JHR)

Mohan Marandi @ Gonga v. State of Bihar

2009-01-28

N.N.TIWARI, PRADEEP KUMAR

body2009
JUDGMENT Both the appeals have been filed against the judgment of conviction and sentence against the accused, Mohan Marandi @ Gonga by Shri D. N. Pathak, 6th Additional Sessions Judge, Dumka in Sessions Case No. 166 of 1992. Cr. Appeal No. 198 of 1997 was filed by the appellant from jail. Jail Appeal was admitted and Mr. Sunil Kumar Pathak was appointed to appear in this case as amicus curiae for the appellant where the original Cr. Appeal No. 393 of 1993 was filed by Mr. Rajiv Ranjan Mishra, Advocate. However, neither the advocate for the appellant nor the Advocate appearing as amicus curie is present in Court to argue the case, hence we ourselves looked into entire appeal with the help of A.P.P. 2. As stated the appeal is directed against the judgment of conviction dated 24.6.1999 and order of sentence dated 28.6.1999 passed by Shri Dinesh Narain Pathak, 6th Additional Sessions Judge, Dumka, by which he convicted the appellant, Mohan Marandi @ Gonga for the charges under Section 302 of the Indian Penal Code and sentenced him to undergo R.I. for life under Section 302 of the Indian Penal Code. 3. The short case giving rise to the prosecution is that on 5.1.1992 the informant Dhena Soren wife of deceased Raska Murmu had gone to Purnea Hatia at 3 P.M. but when she returned back at 6 P.M., she found that the door of her husband was chained and locked from outside and she waited for her husband till 10 P.M. Raska Murmu, he did not return in the night. In the next morning at about 6 A.M. one Nunua Tudu informed her that the dead body of her husband is lying in the field of Shiblal Manjhi and then along with several villagers she went there and found the dead body of her husband-deceased, with sign of scratches on the neck and at some distance from the dead body there was one blue-coloured old Chapal, one check Terry cotton Handker-chief and one check green yellow coloured Lungi and one comb of some other person and one Panchi(Gamcha) green-coloured of her husband and one check woolen shawl of her husband was lying there. It is further stated that in the mean time, the accused, Mohan Marandi @ Gonga came there and began collecting the handkerchief, Lungi, comb and chapal. It is further stated that in the mean time, the accused, Mohan Marandi @ Gonga came there and began collecting the handkerchief, Lungi, comb and chapal. Thereupon the villagers caught hold of him and started assaulting him. The accused on enquiry stated in presence of all the villagers that yesterday night on 5.1.1992 at about 8 P.M. he along with deceased, Raska Murmu took wine from the shop of Pirthi Manjhi and while they were going to their Tola in the way some altercation took place about the charges of the wine suddenly the deceased, Raska Murmu attacked him, but fell down on the ground then he pressed his neck and went to his house thinking that the deceased had also gone back to his home. Under the impression that the deceased must have gone back to his house, he came again to collect his articles, which had fallen down during scuffle. Thus it is alleged that because there is some land dispute existing between the accused Devar of the informant and her deceased husband, hence this murder was committed by the accused. On the basis of the said Fardbeyan (Ext. 3) police registered F.I.R.(Ext.4) and after investigation submitted charge-sheet. 4. During trial the accused pleaded not guilty to the charge and claimed that he had not committed murder of the deceased and that his confession was obtained after assaulting him by the villagers. Since his articles were lying near the dead body, he was caught on suspicion and falsely implicated. 5. During trial, the prosecution examined 8(eight) witnesses and proved the Fardbeyan(Ext.3) F.I.R. ( Ext. 4) and also proved the post-mortem report (Ext.2). 6. The trial court after hearing the parties found the accused guilty as aforesaid. 7. We have gone through the entire evidence adduced by the prosecution in this case. Prosecution has examined 8 (eight) witnesses. P.W.1, Bisni Manjhian, has stated that in her presence the accused, Mohan Marandi @ Gonga accepted that his Lungi and Chapal etc. were lying near the dead body and he stated that he had committed the murder of the deceased in the previous the night. P.W.2 was tendered for his cross-examination. P.W. 3, Nunua Tudu also stated that in his presence the accused, Mohan Marandi @ Gonga accepted that the Chapal, Lungi & Gamcha belonged to him and he had committed the murder of the deceased. P.W.4, Dr. P.W.2 was tendered for his cross-examination. P.W. 3, Nunua Tudu also stated that in his presence the accused, Mohan Marandi @ Gonga accepted that the Chapal, Lungi & Gamcha belonged to him and he had committed the murder of the deceased. P.W.4, Dr. B. K. Sinha, who has conducted the post-mortem examination on the dead body of the deceased, Raska Murmu and found multiple abrasions in front of the neck of the deceased, with swelling of upper part of neck and his opinion that the deceased died due to asphyxia as a result of throttling. P.W.5, Kunal Kisku has also stated in his presence that the accused, Mohan Marandi @ Gonga accepted that the Chapal, Lungi and Gamcha, belonged to him and he had committed the murder of the deceased. P.W. 6, Kunal Kisku is the informant and she has supported the F.I.R. and stated that when she went to the place where the dead body was lying she found Chapal, Gamcha and Lungi etc. near the dead body of her husband and when the villagers inquired from the accused, Mohan Marandi @ Gonga he accepted that the articles belonged to him and he had committed the murder of deceased, Raska Murmu by pressing his neck. P.W.7 was tendered for his cross-examination. P.W. 8 is the Investigating Officer, who proved the Fardbeyan (Ext.3), formal F.I.R. (Ext.4), Seizure-list (Ext. 5), signature on seizure-list (Ext.6) and Inquest report (Ext.1). He also stated that he recorded the statement of the accused, in which he confessed his guilt. 8. We have carefully examined the evidences adduced by the prosecution during trial and we find that no body has seen the accused-Mohan Marandi @ Gonga committing the murder of his brother-deceased Raska Murmu. All the witnesses, including P.W.8 have only stated that when they gathered near the dead body of the deceased Raska Murmu in a field of Shiblal Manjhi, then they saw some articles like Chapal, Gamcha, Chadar, Lungi, terry cotton handker-chief and comb etc. lying scattered and that in presence of the villagers, the accused, Mohan Marandi @ Gonga accepted that the said articles belonged to him and he had committed the murder of his brother-deceased in the last night. lying scattered and that in presence of the villagers, the accused, Mohan Marandi @ Gonga accepted that the said articles belonged to him and he had committed the murder of his brother-deceased in the last night. So there is two type of confessions of the accused on which the entire prosecution case has based; One confession before the villagers at the place of occurrence and another confession before the police, which has been recorded by the Investigating Officer. The confession recorded by the Investigating Officer, S.I., Arun Paswan at Paharia Tola on 6.1.1992 which find place in page 5 of the paper book, is hit by Section 26 of the Indian Evidence Act and it cannot be relied upon for convicting the accused. 9. The second confession is before the witnesses P.W.6 the informant, P.W. 5, Kunal Kisku, P.W. 7, Sobin Marandi. It appears from the evidence of the informant, P. W. 6 itself that all the villagers, about 40-60, have collected at the place of occurrence and under their threat and assault the accused, Mohan Marandi @ Gongu accepted his guilt, although the informant has denied the fact that the accused was badly assaulted by the villagers, it appears from the record that before the police in her fardbeyan (Ext. 3), she has admitted that the villagers caught hold of the accused and assaulted him and during assault he received injuries. The statement of the informant (Ext. 3) is also supported by the fact that when the accused was produced before the Court of Chief Judicial Magistrate, Dumka on 6.1.1992, the Magistrate found several injuries on his body, which were bandage and he stated before the Court that he was also assaulted by the villagers. He was referred to the Jail Dr. by the Court’s order at the time of remand to jail custody. Thus, we find that there is ample evidence to give a finding that the confession before the villagers proved by the witnesses, namely, P.Ws. 1, 2, 3, 5, 6 and others, is also not voluntarily and was obtained by the villagers by threat and assault and accordingly the said confession is also hit by Section 24 of the Indian Evidence Act and cannot be relied upon for convicting the accused. 10. 1, 2, 3, 5, 6 and others, is also not voluntarily and was obtained by the villagers by threat and assault and accordingly the said confession is also hit by Section 24 of the Indian Evidence Act and cannot be relied upon for convicting the accused. 10. In such a situation, we find no evidence to prove the fact that the accused, Mohan Marandi @ Gonga had committed the murder of the deceased, Raska Murmu. Accordingly, we find that the prosecution has failed to prove the charges beyond all reasonable doubts. Hence the judgment of conviction dated 24.6.1993 and order of sentence dated 28.6.1993 passed by the trial court is set aside and the appellant is acquitted of the charges levelled against him. Since the appellant is on bail, he is discharged from the liability of his bail bond. 11. Accordingly, the appeal is allowed.