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2009 DIGILAW 182 (JHR)

Bhukhan Bhuian v. State of Bihar

2009-02-04

N.N.TIWARI, PRADEEP KUMAR

body2009
JUDGMENT By Court.-The appellant was prosecuted for the charge under Section 302 of the Indian Penal Code. He was convicted for the charge and sentenced to undergo life imprisonment. 2. The prosecution case, in brief, is that on 1.11.1996 at about 15.15 P.M. the co-villager, Bisheswar Bhuian informed the informant that his brother, Bhukhan Bhuian (appellant) has killed his wife-Manmati Devi by giving spade blow. The informant rushed to the place of occurrence, which was Khalihan near the house of Kameshwar Pandit and there he saw the dead body of Manmati Devi lying on the ground. 3. Police after investigation submitted charge-sheet under Section 302 of the Indian Penal Code against the appellant. Cognizance of the said offence was taken and the case was committed to court of sessions. 4. The appellant denied the charge and pleaded not guilty. 5. In order to prove the charge against the appellant the prosecution examined as many as nine (9) witnesses. Out of them P.W. 2, Briksha Bhuian is said to be an eye witness. P.W. 1, P.W. 3, P.W. 4, P.W. 5 and P.W. 6 are the hearsay witnesses. P.W. 7 is the Doctor, who conducted the post-mortem of the body of the deceased. P.W. 8 is the Investigating Officer and P.W. 9 is the Constable and formal witness who came to prove the signature of the Officer-in-Charge on the formal F.I.R. 6. On conclusion of the trial learned Trial Court relied on the testimony of the solitary eye witness (P.W. 2) coupled with post mortem report. The doctor had found three injuries on vital parts of the body of the deceased. 7. Learned court below on that basis found the appellant guilty and convicted and sentenced him as aforesaid. 8. Mr. B.P. Jaiswal, learned counsel appearing on behalf of the appellant sub. mitted that the conviction of the appellant is based on the testimony of P.W. 2 who is the sole eye witness. From the deposition of the P.W. 2, it is evident that he claimed to have seen the occurrence from a distance of about 1 mile, which is humanly impossible without help of any scientific instrument. It is not the prosecution case that any scientific instrument was used by the said eye witness (P.W. 2), Even motive is absent in this case. 9. Learned counsel submitted that the medical evidence also does not corroborate the ocular evidence. It is not the prosecution case that any scientific instrument was used by the said eye witness (P.W. 2), Even motive is absent in this case. 9. Learned counsel submitted that the medical evidence also does not corroborate the ocular evidence. There is allegation of causing death by giving spade blow by the appellant, but on autopsy, the doctor has found several lacerated ante mortem injuries on the body of the deceased. The prosecution' version of the occurrence and the role attributed to the appellant, has not been proved by any cogent or unimpeachable piece of evidence. The contradictory version of the eyewitness and medical evidence gives rise to serious doubts in the prosecution version of the complicity of the appellant. 10. Learned court below has committed serious error in convicting and sentencing the appellant under Section 302 of the Indian Penal Code on such doubtful evidence. 11. Learned A.P.P., on the other hand, submitted that though P.W. 2 is solitary eye witness, he has specifically stated that the appellant had given spade blow on the deceased, which caused her death. The doctor has also found several injuries on the head of the deceased. P.W. 2 is a rustic person and he may have wrong assessment of tile distance. However, from his deposition it is manifest that he has witnessed the occurrence. Merely on the basis of some contradictions, his evidence cannot be discarded. Learned trial court has rightly relied on the said piece of evidence and has rightly come to the conclusion holding the appellant guilty of committing murder of the deceased. 12. Having heard learned counsel for the appellant and learned counsel for A.P.P., we have meticulously scrutinized the evidences on record. We find that except P.W. 2 and official witnesses the other prosecution witnesses are hearsay. P.W. 2, Briksha Bhuian claimed to be the eye witness, but in paragraph 2 of his deposition, he said to have witnessed the occurrence from a distance of 1 mile. The said statement makes his claim of witnessing the occurrence seriously doubtful. 13. Learned court below has explained the same supplying the reason that the witness being illiterate person there may be incorrect assessment of the distance. However, on going through the deposition of P.W. 2 we do not find that the witness is incapable of understanding or assessing the distance. 13. Learned court below has explained the same supplying the reason that the witness being illiterate person there may be incorrect assessment of the distance. However, on going through the deposition of P.W. 2 we do not find that the witness is incapable of understanding or assessing the distance. The witness has given vivid account of the incident even after a long lapse of time. There is no solid ground to assume that the witness has no capacity of assessing distance. In absence of any basis to doubt the witness's capacity of understanding and assessing the distance, it is not safe to ignore the said vital infirmity in the prosecution evidence and convict the appellant on such shaky testimony. The medical evidence also does not corroborate the ocular testimony and does not support the prosecution version that the deceased was killed with spade. It is not the prosecution case that the deceased was given spade blow from the back and blunt side and as such no sharp cutting injury has been found on the person of the deceased. 14. In view of the above discussion, we find no sufficient evidence to uphold the appellant's conviction and sentence passed by learned trial court and affirm his judgment. The impugned judgment/order of conviction and sentence is set aside. This appeal is allowed. 15. Since the appellant is in custody he shall be set a liberty forthwith, if not wanted in any other case.