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2009 DIGILAW 1486 (JHR)

Balkaha Lohra v. State of Jharkhand

2009-11-20

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court.-These appeals have been preferred by the appellants against the judgment of conviction and order of sentence dated 3.9.2001 and 4.9.2001 respectively passed in S.T. No. 159 of 1999 by Sri Ravindra Nath Verma, Additional Judicial Commissioner-cum-Special Judge-1, Ranchi. 2. Both the aforesaid appeals arose from common judgment whereby three accused persons, namely, Balkaha Lohra, Bhim Mahli and Karma Oraon were tried for committing offences under Section 302/ 34 and Section 307/34 IPC. They were convicted by the learned trial court under Section 302/34 and were sentenced to undergo life imprisonment under Section 302/34 IPC and rigorous imprisonment for 10 years under Section 307/34 of the IPC. 3. Aggrieved by the said judgment of conviction two Criminal Appeals were preferred Cr. Appeal (DB) No. 470 of 2001 was preferred by Karma Oraon whereas Cr. Appeal (DB) No. 118 of 2002 was filed by Balkaha Lohra. No appeal appears to be filed by Bhim Mahli. 4. As both the appeals are directed against the same judgment of court below, therefore they are heard together and are being disposed of by this common judgment. 5. The prosecution was launched on the basis of fardbeyan of Sukra Panna P.W.1 dated 26.11.1998. 6. The prosecution case, in brief, is that on 25.11.1998 the informant and his brother Jabaru Panna had gone to Itki Bazar market. In the evening both of them were on the way to their village. At about 5 p.m. they were taking rest at Upri Siwan Moropatra in the meanwhile Balkaha Lohra, Bhim Mahli and Karma Oraon (accused persons) came there. Jabaru Panna asked them as to why they commit theft of crops, the accused persons confessed and promised not to commit theft in future. But suddenly accused Bhim Mahli and Karma Oraon caught hold of Jabaru Panna and Balkaha Lohra took out a dagger from his pocket of his pant and hurled dagger blow on the head and neck of Jabaru Panna. The informant raised alarm and tried to rescue his younger brother Jabaru Panna, Balkaha attacked on him and gave dagger blow on chin. Jabaru succumbed to injuries and died at the spot. The informant thereafter went to his village leaving the dead body of his brother there. On the next day, he informed the incident to the Itki police. 7. The informant raised alarm and tried to rescue his younger brother Jabaru Panna, Balkaha attacked on him and gave dagger blow on chin. Jabaru succumbed to injuries and died at the spot. The informant thereafter went to his village leaving the dead body of his brother there. On the next day, he informed the incident to the Itki police. 7. On the said fardbeyan of informant, police registered case under Sections 302, 324/34 of the IPC against the appellants and after conclusion of investigation, the police submitted charge-sheet. 8. Charges under Sections 302/34 IPC and 307/34 IPC were framed against the accused appellants. The appellants denied the charges and claimed to be tried. They were put on trial. In the examination under Section 313 Cr.P.C. they denied to have committed any offence. 9. Prosecution in order to establish the charge against the appellants altogether examined 13 witnesses. P.W. 1 Sukra Panna the informant was produced as the sole eye witness of the occurrence. P.W. 2, P.W. 3, P.W. 4, P.W. 5, P.W. 9, P.W. 12 were produced as independent witness by the prosecution but they did not support the prosecution case and were declared hostile. P.W. 6 Dr. Tulsi Mahto had conducted the post mortem on the dead body and proved the post mortem report. P.W. 7 Dr. Arbvind Sharma was also examined to prove the injury report of the injuries found on the person of the informant. P.W. 8 Chhunu Mahli , P.W. 10 Bhandi Gope, P.W. 11 Budhu Oraon, P.W. 13 Mahabir Oraon son of the deceased are hearsay witness. 10. Learned trial court on the conclusion of trial held the appellants guilty for the aforesaid charges. Court below heavily relied on the ocular testimony of P.W.1 and medical evidence of P.W. 6 and held the appellants guilty for committing the murder of Jabaru Panna. Relying on the testimony of P.W. 1 and P.W. 7 held the accused persons guilty for attempting on the life of informant P.W. 1 under Section 307/34 of the IPC and convicted and sentenced them as aforesaid. 11. Learned counsel for the appellants, of both the appeals have assailed their conviction and sentences almost on similar grounds. Relying on the testimony of P.W. 1 and P.W. 7 held the accused persons guilty for attempting on the life of informant P.W. 1 under Section 307/34 of the IPC and convicted and sentenced them as aforesaid. 11. Learned counsel for the appellants, of both the appeals have assailed their conviction and sentences almost on similar grounds. According to the appellants, the impugned judgment of the learned trial court and their conviction and sentence is not sustainable as the same is based on evidence of solitary so-called eye witness P.W.1 which is full of vital contradictions and not at all credible. Oral testimony of P.W.1 is not supported by any independent witness. Almost all the eye witnesses produced by the prosecution have been declared hostile. Even the medical evidence does not corroborate the oral testimony of P.W. 1. That apart inquest report has not been proved by the prosecution. The seizure list has also not been proved. The Investigating Officer has not been examined. The manner of occurrence has not been proved and the entire evidence taken as a whole does not support the prosecution version. Learned trial court ignoring the said vital legal infirmities has erroneously recorded its finding of conviction and its conclusion is based on mere assumptions and cannot sustain. 12. Mr. Chandrajit Mukherjee; learned counsel appearing in Cr. Appeal No. 470 of 2001 and Mr. Gautam Rakesh, learned counsel appearing in Cr. Appeal No. 118 of 2002 one after another have further submitted that the prosecution has miserably failed to bring home the charges against the appellants by a legal evidence. The evidence of P.W. 1 which had been heavily relied upon by the learned trial court is shaky and full of contradictions and the learned court below, contrary to the settled principles of law, had based its finding on such sole oral testimony of P.W. 1 without any corroboration by independent witness. Court below failed to take into consideration that there was inordinate delay in lodging the FIR. The Police Station is at about equal distance but the informant preferred to go home and did not inform the occurrence to the police in the evening. Unusually the dead body was left alone at a lonely place all over the night. The injuries on the person of the deceased does not support the manner of assault alleged by the prosecution. Unusually the dead body was left alone at a lonely place all over the night. The injuries on the person of the deceased does not support the manner of assault alleged by the prosecution. According to the informant P.W. 1, he went home from the place of occurrence with his co-villagers Junga and Balwaha but they have not been examined on behalf of the prosecution. The incriminating dagger had not been seized, the blood stained earth which was seized by the police had not been produced and proved. According to the prosecution, the deceased have received dagger blow with profuse bleed but cloths has not been seized by the prosecution. The appellants have been seriously prejudiced by non-examination of Investigating Officer. They have been deprived of confronting him regarding his description of the place of occurrence, seizure of blood stained earth, position of the dead body at the time of preparing the alleged inquest, the position of the nearby country liquor shop and the topography which were very relevant for the defence. There has been no proper examination of the accused/appellants under Section 313 of the Cr.P.C. which has also caused them serious prejudice and renders impugned judgment unsustainable in law. Learned counsel submitted that court below has committed serious error of law as well as of the fact holding the appellants guilty of the said charge and convicting and sentencing as aforesaid. 13. Mr. M.B. Lal, learned Additional public Prosecutor, on the other hand, supported the impugned judgment and submitted that the prosecution has been able to prove the charges against the accused persons by producing P.W. 1 who is the eye witness of the occurrence and by proving the post mortem Ext.-2. P.W. 6 who proved the post mortem has fully corroborated the injury inflicted on the neck of the deceased by dagger. The doctor has found severe stab injury on the neck of the deceased which caused the death. Though most of the eye witnesses have turned hostile, P.W. 8, P.W. 10, P.W. 12 have also corroborated the testimony of P.W. 1 though it is a fact that they are hearsay witnesses. Part of the statements are relevant for the purpose of corroborating the prosecution version. Even the hostile witnesses have also at least proved the occurrence including the place of occurrence and the appellants' ground of prejudice due to non-examination of Investigating Officer have no substance. Part of the statements are relevant for the purpose of corroborating the prosecution version. Even the hostile witnesses have also at least proved the occurrence including the place of occurrence and the appellants' ground of prejudice due to non-examination of Investigating Officer have no substance. There is no ambiguity regarding the place of occurrence and the manner of occurrence, weapon used in the commission of offence and the non-examination of the I.O. has not caused any adverse effect for the defence. The occurrence took place at about 5.p.m. in November which is winter season. The informant went home in the night and just the next morning at about 10.30 a.m. fardbeyan of P.W. 1 was recorded. The delay in lodging of FIR has thus been fully explained by the prosecution and no prejudice has been caused due to said delay in lodging the FIR. He further submitted that although the inquest report had not been proved, the post mortem report fully corroborates the injuries inflicted by the appellants as stated by the P.W. 1. Some bruises found by the doctor is natural after the fall of the deceased on receiving dagger blow. The said bruises is not said to be unexplained or giving rise to any doubt or infirmity in the prosecution case. P.W. 1 appears to be rustic and minor contradictions in his depositions are not unusual and on that basis his testimony cannot be discarded. He further urged that the learned court below has rightly taken into consideration the said evidences and has rightly come to the conclusion holding the appellants guilty for the aforesaid offences. 14. Having heard the learned counsel for the appellants and learned APP, we scrutinized the materials on record. In his fardbeyan P.W. 1 has stated that Bhim Mahli and Karma Oraon caught hold of the deceased and Balkaha Lohra took out knife from his pocket of his pant and assaulted the deceased on his head and neck. But in cross-examination P.W. 1, contracted the said version. In paragraph 35 of his deposition he stated that only Bhim had caught hold of the deceased and Balkaha took out knife and inflicted injuries on him. Further in paragraph 31 of his deposition he stated that 40 to 50 persons were present at the time of occurrence but not a single independent witness has been brought by the prosecution to support its version. Further in paragraph 31 of his deposition he stated that 40 to 50 persons were present at the time of occurrence but not a single independent witness has been brought by the prosecution to support its version. In paragraph no. 36, P.W.1 stated that he went to village alongwith Junga and Balwaha but neither Junga nor Balwaha nor any other villagers has supported him in paragraph 33 of his deposition he stated that there was no altercation/scuffle at the time of occurrence but the doctor has found at least 5 abrasions on different parts of body. From the record, we find that there is no explanation by the prosecution regarding the said abrasion on the dead body. Though learned APP has stated that the medical evidence supported the oral testimony of P.W. 1, we are unable to appreciate the said statement. P.W. 1 stated in his fardbeyan that Balkaha had given knife on the head and neck but no injury on the head has been found in the medical evidence. P.W. 1 had not stated about any abrasion but at least 5 abrasions have been found on the body of deceased. That apart, we find several other contradictions in his deposition. Though it is true that the doctor had found stab on the neck of the deceased which corroborates at least one injury, stated by P.W.1 in his fardbeyah. Yet absence of injury on the head and absence of explanation of 5 abrasions on the dead body makes the veracity of the version of P.W. 1 doubtful. Quality of the evidence of P.W. 1 is not such which can be solely relied upon for accepting that these appellants were the author of the said injury. It is not at all safe to convict a person on such shaky and doubtful evidence for a serious offences under Section 302 or 307 of the IPC. That apart, we also find substance in the defence claim that non-examination of I.O. caused them serious prejudice. Appellants have not been able to confront the Investigating Officer on the point of topography of the place of occurrence, the position of the dead body at the time when the I.O. first saw the dead body and prepared the inquest. That apart, we also find substance in the defence claim that non-examination of I.O. caused them serious prejudice. Appellants have not been able to confront the Investigating Officer on the point of topography of the place of occurrence, the position of the dead body at the time when the I.O. first saw the dead body and prepared the inquest. I.O. was also not confronted on the point of seizure of the blood stain earth, for not seizing the blood stained cloth of the deceased and the weapon used for commission of the offences. Even the inquest report has not been proved by the prosecution which, in our view, has also caused serious prejudice to the appellants. In absence of independent testimony and corroboration, in view of the doubtful veracity of the oral testimony of P.W.1, we are thus unable to uphold the finding of the learned trial court. 15. In view of above, these appeals are allowed. Conviction and sentence of the appellants are set aside. They are acquitted of the charges. Karma Oraon appellant in Cr. Appeal (DB) No. 470 of 2001 is said to be on bail, he is discharged from the liability of his bail bond. Balkaha Lohra appellant in Cr. Appeal (DB) No. 118 of 2002 is in custody, he is directed to be set at liberty forthwith, if not wanted in any other case.