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2009 DIGILAW 257 (JHR)

Chhoto Majhi v. State of Bihar (Now Jharkhand)

2009-02-17

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court. — This criminal appeal has been preferred by the appellant against the judgment of conviction and the order of sentence dated 14.7.1997 passed by Shri J.K. Narayan, the-learned Additional Sessions Judge, Seraikella in S.T. No. 116/1995. 2. The appellant was charged for committing the offences• under Sections 447/ 302/307 IPC. The appellant was found guilty for committing offences under Sections 447/302 IPC and was sentenced to undergo S.I. for three months under Section 447 IPC and R.I. for life under Section 302 IPC. He was not found guilty under Section 307 IPC and was acquitted of the said charge. 3. The prosecution case is based on the fardbeyan of the informant-Ratnakar Mandal (PW-8), who happens to be the father of the deceased Pradeep Kumar Mandal. 4. The prosecution case briefly stated is that on 19.7.94 at about 6 A.M. the deceased Pradeep Kumar Mandal had gone for urination towards the North of his house. The informant took the cow's dung and went to the dung pit to dispose of the same in the adjacent Bari which is adjacent west of the Bari of the accused appellant. In the meanwhile, the accused appellant Chhoto Majhi shot an arrow which hit the right hand of the deceased Pradeep Kumar Mandal. He then shot another arrow on the right lateral side of the chest of the deceased Pradeep Kumar Mandal. The informant tried to catch hold of the accused and intervene, but he also sustained arrow injury in his chin. The informant snatched away the bow and arrows from the accused and raised alarm. The co-villager Amul Mandal-PW-7, Indrajit Mandal-PW-6 rushed to the spot and saw the accused-appellant Chhoto Majhi fleeing away towards the North. The co-villager Pitwas Mandal-PW-5, Amul Mandal PW-7 helped in bringing the injured Pradeep Kumar Mandal to the Government Hospital, Kharsawan where Pradeep Kumar Mandal succumbed to his injuries. 5. The genesis of the alleged occurrence is said to be the land dispute between the parties as the accused was complaining that Kusum fruit was falling in his land which is situated adjacent west from the land of the informant and he was objecting to put the dung in the dung pit adjacent to his land. 6. The police investigated the case and submitted the charge-sheet. Charge under Sections 447, 302 & 307 IPC was framed against the appellant. 6. The police investigated the case and submitted the charge-sheet. Charge under Sections 447, 302 & 307 IPC was framed against the appellant. The accused denied the charges and claimed to be tried. He was put on trial. In his examination under Section 313 Cr.P.C. he denied to have committed any offence. It was alleged that Pradeep Kumar Mandal was an accused of the rape case and the alleged rape was committed on the same land where Pradeep Kumar Mandal is said to have sustained injuries. 7. The prosecution in order to establish the charge against the appellant altogether examined eleven witnesses. PW-1-Dr. B. Ansari had examined the injuries on the person of the informant who, however, had not found any injury caused by arrow. The injuries were found to be simple in nature. PW-2-Sita Ram Mandal is a witness of the seizure list. PW-3-Jagdish Prasad Mandal is a co-villager and he is a tendered witness. PW-4-Abhimanu Mandal is the full brother of the deceased. He is said to be the witness of the inquest report. He proved the signature on the inquest report (Exts.-2/4 & 2/5). Another co-villager PW-5-Pitwas Mandal is also a tendered witness. PW-6-lndrajit Mandal, PW-7-Amul Mandal are the witnesses who are said to have supported the prosecution case. PW-8-Ratnakar Mandal is the informant. PW-9-Dr. Nand Kishore Prasad is the Doctor who conducted the post mortem examination on the dead body of the deceased Pradeep Kumar Mandal. PW-10-Rajnarayan Singh, S.I. is almost a formal witness who is said to have submitted the charge-sheet on the basis of the investigation of his predecessor. PW-11-Jawahar Pandey is the officer-in-charge who happens to be the Investigating Officer. 8. Learned Trial Court placed reliance on the evidences of PW-8-the informant, PW-6, PW-7 and PW-11 as also on the medical evidence of PW-9 and found the accused-appellant guilty of trespassing into the Sari land of the informant and committing murder of the deceased Pradeep Kumar Mandal and sentenced, as aforesaid. 9. Mr. G.C. Sahu, learned counsel appearing on behalf of the appellant, assailed the impugned judgment and submitted that the very foundation of the prosecution case has shaken due to suppression of the first information given by the informant at the Police Station, as has been stated by the informant-PW-8 in paragraph 15 of his deposition. 9. Mr. G.C. Sahu, learned counsel appearing on behalf of the appellant, assailed the impugned judgment and submitted that the very foundation of the prosecution case has shaken due to suppression of the first information given by the informant at the Police Station, as has been stated by the informant-PW-8 in paragraph 15 of his deposition. The said witness has clearly stated that the same was his only statement and no other statement was made by him before the police. But the said statement has been suppressed and the statement allegedly made by him in the hospital has been made basis for the prosecution case. The testimony of the so-called eye witness is unreliable as there are vital contradictions in the manner of the alleged occurrence as also the same is contrary to the medical evidence. The case of the prosecution is that the arrow which hit the deceased and caused his death was seized, but the same has not been produced by the prosecution. The prosecution has heavily relied on the testimony of Ratnakar Mandal who is said to be the eye witness and also the informant. But in view of the statements made in Paragraph 15 of his deposition, as aforesaid, there is no credibility of the said witness and his testimony cannot be used for the conviction of the appellant. There are developments in the prosecution story at different stages and the same are not believable. learned counsel submitted that in view of the said infirmity in the prosecution case, there is serious doubt about the veracity of the prosecution story and the appellant deserves the benefit of doubt. learned Court below contrary to the legal provisions has used the benefit of doubt in favour of the prosecution and has erroneously convicted and sentenced the appellant, as aforesaid. 10. learned A.P.P. on the other hand, supported the impugned judgment. He submitted that PW-8 is the eye witness and he is a competent witness as he was present at the time of the incident. Looking to the quality of his evidence as eye witness having seen the alleged incident, the prosecution has successfully established the case. The testimony of the said witness has been also corroborated by other ocular and medical evidences. Looking to the quality of his evidence as eye witness having seen the alleged incident, the prosecution has successfully established the case. The testimony of the said witness has been also corroborated by other ocular and medical evidences. The Doctor has found injury on the right hand and the chest area and the inquest report, post mortem report and other documents corroborate the said fact. Learned Trial Court after thorough assessment of the said evidences has rightly passed the impugned judgment of conviction against the appellant. 11. Having heard learned counsel for the appellant as also learned A.P.P. we meticulously appraised the evidences on record. As pointed out by learned counsel for the appellant, we noticed the serious lacuna in the prosecution case for not disclosing the statements made by the informant-PW-8 at the Police Station. In paragraph 15 of his deposition, PW-8 has clearly stated that the statement given by him at the Police Station was his only statement and he had not given any other statement. Admittedly, the said statement has not been brought on record by the prosecution which casts serious doubt on the veracity of the prosecution version. The submission of learned counsel for the appellant is convincing that the same appears to be deliberate suppression by the prosecution in order to conceal the true version of the informant. Although in the other paragraphs the said witness has tried to support the prosecution version, but in absence of the first information, it is difficult to rely on the other versions of the said witness. The prosecution has not only failed in bringing the first information on record, but it has also not produced the alleged arrows which hit the deceased and caused his death and which are said to have been seized at the spot. We find no explanation for withholding the said very important piece of evidence. According to the provisions of Section 114(g) of the Indian Evidence Act, the said suppression of important evidence compels us to draw adverse inference against the prosecution making the prosecution story doubtful. Apart from that, there are material contradictions in the evidences adduced by the prosecution. We find no explanation for withholding the said very important piece of evidence. According to the provisions of Section 114(g) of the Indian Evidence Act, the said suppression of important evidence compels us to draw adverse inference against the prosecution making the prosecution story doubtful. Apart from that, there are material contradictions in the evidences adduced by the prosecution. PW-6-lndrajit Mandal, who happens to be the uncle of the deceased, in paragraph 1 of his deposition has stated that nobody had disclosed the name of the miscreants whereas the another co-villager PW-7-Amul Mandal who arrived at the same time, in paragraph 2 of his deposition has stated that Pradeep Kumar Mandal told that Chhoto Majhi had assaulted him. According to the statements of PW-6 and PW-7, both of them arrived there and accompanied Pradeep Kumar Mandal to the hospital, but there are many contradictions in their statements. PW-7 in paragraph 2 of his deposition has stated that Ratnakar Mandal-informant had also accompanied them to hospital, whereas the PW-8 in paragraph 12 of his deposition has contradicted the same and has stated that before going to hospital he had gone to the Police Station. 12. In view of the said lacuna, contradictions and developments in the prosecution story, we do not find any credible and cogent basis for establishing the charges against the appellant sufficient for holding him guilty of the alleged offences and his conviction and sentence under Section 447/302 IPC. The learned Trial Court ignoring the said vital legal lacuna in the prosecution case has tried to bridge the same while coming to its finding contrary to the established legal principles. We are unable to uphold the said finding of the learned Court below as the doubts created, as aforesaid, cannot be used against the accused-appellant and he deserves the benefit of doubt. 13. In the result, we allow this criminal appeal and set aside the judgment of conviction and the order of sentence dated 14.7.97 passed against the appellant by Shri J.K. Narayan, the learned Additional Sessions Judge, Seraikella in S.T. No, 116/1995. As the appellant is in custody, he is ordered to be set at liberty forthwith, if not wanted in any other case.