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2009 DIGILAW 244 (JHR)

Kandra Tiu v. State of Bihar

2009-02-13

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court.- The appellants were charged and tried for committing offences under Sections 364/149, 302/149 and 201 of the Indian Penal Code. Accused-appellant Kandra Tiu was further charged under Section 307 of the Indian Penal Code for causing assault to the informant-P.W. 2. All the appellants have been found guilty and convicted under Sections 302/149 of the Indian Penal Code and have been sentenced to undergo life imprisonment. They have been also convicted for the offences under Sections 364/149 and 201 of the Indian Penal Code and have been sentenced to undergo for rigorous imprisonment for five years and four years, respectively. Appellant-Kandra Tiu, additionally, has been convicted for the offence under Section 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for five years. All the sentences are to run concurrently. 2. The informant-P.W. 2 made statement before the police on 12th November, 1996 at 10.00 p.m. in tribal language, 'HO', which was translated by Madusudhan Aida, Manki, (P.W. 5) and on that basis, the fardbeyan (Ext.-7) was recorded by the police. Briefly stated the prosecution case is that on 11th/12th November, 1996 at about 12.00 a.m., the informant, her husband and children were sleeping in their house. The appellants-Kondro Tiu, Duga Tiu, Dona Tiu and Budhan Tiu entered into her house and caught hold of the informant's husband and began to assault him. The informant raised alarm and took up a DANDA and in order to save her husband, she gave one blow on Duga Tiu. Kondro Tiu caught hold of her and brought outside the house on a village street. Kondro took up stone and assaulted her on the face and tried to strangulate her. The informant then caused tooth bites on the hand of Kondro Tiu and anyhow managed to escape from that place. It has been alleged that the accused persons assaulted her husband. In conversation, they told her that they were going to kill him. The next morning when the informant returned home, her husband was missing. There was sign of bloodstain on the floor of the house, which was tried to be washed with cow-dung. However, there was still some bloodstain here and there. 3. In conversation, they told her that they were going to kill him. The next morning when the informant returned home, her husband was missing. There was sign of bloodstain on the floor of the house, which was tried to be washed with cow-dung. However, there was still some bloodstain here and there. 3. Genesis of the incident is said to be the property dispute, as the deceased happened to be the son of the first wife of Kondro Tiu-Appellant No. 1 and Duga Tiu happened to be the step-brother, supported by other accused-appellants. 4. Accused-appellants denied the charges and pleaded not guilty. They claimed that they have been falsely implicated in the case due to animosity and land dispute. He was put on trial. In his examination under Section 313 Cr.P.C. he denied to have committed any offence. 5. The prosecution, in order to bring home the charges against the accused-appellants, examined as many as nine witnesses. P.W. 1 is the doctor, who conducted autopsy on the alleged dead body of Tantu Tiu; P.W. 2 is the informant, wife of the deceased Tantu Tiu; P,Ws. 3 and 4 are co-villagers, who turned hostile at the time of their deposition; P.W. 5 is Madusudhan Aida, who was the Manki of the village and said to have translated 'HO' language of the informant's statement into Hindi language, which was recorded as fardbeyan; P.Ws. 6 and 7 are the doctors, who had examined the injuries on the person of the informant-P.W. 2; P.W. 8 is a formal witness, who has proved the fardbeyan and inquest report (Exts. 7 and 8); and P.W. 9 is the Investigating Officer of the case. The prosecution also brought on record the following documentary evidences-Ext.-1 is the post mortem report, Ext.-2 is the signature of Madusudhan Aida, Manki, Ext.-3 is the injury report prepared by Dr. Chandra Bushan (P.W. 6), Ext.-4 is the injury report prepared by Dr. Yogendra Singh (P.W. 7), Ext.••5 is the reference slip of Dr. Chandra Shushan, Ext.-6 is the formal first information report, Ext.-7 is the fardbeyan, Ext.-8 is the inquest report and Ext.-9 is the confessional statement of Duga Tiu. 6. Learned Trial Court, on conclusion of the trial, held all the accused-appellants guilty on the basis of the said ocular and medical evidences. Learned Trial Court relied on the evidences of P.W. 2-informant, P.Ws. 6. Learned Trial Court, on conclusion of the trial, held all the accused-appellants guilty on the basis of the said ocular and medical evidences. Learned Trial Court relied on the evidences of P.W. 2-informant, P.Ws. 5, 6, 7 and 9 and convicted and sentenced them aforesaid and acquitted two co-accused, namely, Duka Purty and Chamra Biruli of all the charges, giving benefit of doubt. 7. Learned counsel for the appellant has assaulted the impugned judgment of court below on the following grounds: (i) There is no positive evidence on record to bring the charges against the appellants. (ii) The confession before the police is not admissible in evidence. (iii) It is apparent from the postmortem report that the body of the dead body, particularly the face of the body, was mutilated, which is not possible to identify. (iv) There is no identification on record to prove that the said body was that of Tantu Tiu. (v) There is no eye witness of the occurrence. (vi) There is no sufficient material, which can be said to be the proof even as circumstantial evidence. (vii) Even from the allegation, the case under Section 364 of the Indian Penal Code is not constituted. (viii) There is no material on record even to infer abduction of Tantu Tiu. (ix) The informant has developed the story from stage to stage and her testimony is not worthy of any credence. (x) The version of P.W. 2 has not been corroborated by any' other independent witness. (xi) The incident is said to have been taken place in a village admitted by the villagers, but nobody has come forward to support the prosecution version. Learned counsel appearing on behalf of the appellants submitted that in substance, this is a case of no evidence and the learned Trial Court has committed serious error in convicting the appellants and sentencing them without any cogent basis. 8. Learned A.P.P., on the other hand, strongly supported the inpugned judgment of the learned Trial Court and submitted that P.W. 2 has given consistent counter of the incident, which has been supported by P.W. 5-Madusudhan Aida, Manki, who is headman of the area, and there is no reason to disbelieve his version. 8. Learned A.P.P., on the other hand, strongly supported the inpugned judgment of the learned Trial Court and submitted that P.W. 2 has given consistent counter of the incident, which has been supported by P.W. 5-Madusudhan Aida, Manki, who is headman of the area, and there is no reason to disbelieve his version. The same coupled with the contention of Duga Tiu and other evidences on record go to prove the charges against the appellants and there is no infirmity or illegality in the impugned judgment. 9. Having heard learned counsel for the appellants as also learned A.P.P., we have scrutinized the material on record. P.W. 1 is the doctor, who had conducted autopsy on the alleged dead body. In Paragraph-1, he has stated that the body was identified by one constable, namely, Sidheshwar Singh. The body was completely decomposed and the face was disfigured. There is nothing on record to show that what was the source for the said constable to identify the said body as the dead body of Tantu Tiu. P.W. 2-informant though tried to support her fardbeyan, we find from the record that she has developed the story of Duga having armed with axe in his hand and that of assaulting on her husband and the said statements are missing in the fardbeyan. She would have been the most competent witness to identify the dead body, which was brought for the post mortem, but there is no such evidence on record that the body was identified by her or any other person of the village or the person who was expected to know and identify Tantu Tiu. P.Ws. 3 and 4 have turned hostile. P.W.5 has simply said that he had accompanied P.W. 2 and translated her statements given in 'HO' language into Hindi language, which was recorded as fardbeyan. He has not stated to witness any of the occurrences. On the point of occurrence, assault etc., his statement has got no evidentiary value, Dr. Chandra Shushan (P.W. 6) and Dr. Yogendra Singh (P.W. 7) have examined injuries on the person of P.W.2. We find from the report of the Medical Officer (P.W.6) that he found one lacerated wound over right side of face near temporal angle of right eye size 1 V2 "x 112" x 112" simple in nature and for other injuries he referred P.W. 2 to Sadar Hospital for examination. We find from the report of the Medical Officer (P.W.6) that he found one lacerated wound over right side of face near temporal angle of right eye size 1 V2 "x 112" x 112" simple in nature and for other injuries he referred P.W. 2 to Sadar Hospital for examination. P.W. 7, who examined P.W. 2 at Sadar Hospital, found Injury Nos. 1 and 2 are simple and one injury of acromino process of left side, which is grievous. From the report it appears that this was dated 23rd November, 1996 i.e. after ten days of the date of occurrence. Moreover, only one such injury has been found on the person of P.W. 2, which is contradictory to her statements made in the fardbeyan as also in her deposition. P.Ws. 6 and 7 had come to prove the said injury• report and not the witnesses of the occurrence or on identification of the dead body. P.W. 8 is formal witness, who is an Advocate Clerk, and P.W. 9 is the Investigating Officer. We do not find any positive evidence in the statements of P.W. 9 in support of the prosecution version of the abduction or assault either on Tantu Tiu or on the informant. We, therefore, find substance in the submissions made by learned counsel for the appellants that there is no sufficient evidence on record to support the conviction and sentence of the appellants. Admittedly, there is no eye witness of the fatal assault on Tantu Tiu including the informant. There is no sufficient material on record to link the offence and make out a chain of circumstance so as to use the circumstantial evidence to support the prosecution case. We find that the prosecution has miserably failed to establish the charges against the appellants. Learned Trial Court has committed serious error in convicting the appellants and awarding sentence as aforesaid. 10. In result, we allow this appeal and set aside the judgment/order of the learned court below. The appellants, who are in custody, shall be set at liberty forthwith, if they are not wanted in any other case.