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2009 DIGILAW 293 (JHR)

Manik Tudu v. State of Bihar (Now Jharkhand)

2009-02-24

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 5.9.1997 passed by Shri Rakeshwar Dayal, the learned Additional Sessions Judge, Sahebganj in S.T. No. 198/1995. 2. The appellant alongwith two others namely Kambo and Kama faced the trial for the charges under Section 302 read with Section 34 of the Indian Penal Code. All of them were found guilty for committing offence under the said Sections and have been sentenced rigorous imprisonment for life by the learned trial court. This appeal has been preferred by the appellant alone. Mr. G.C. Sahu learned counsel appearing on behalf of the appellant is not in a position to convey as to what happened to other two accused persons. 3. The prosecution was launched on the basis of fardbeyan of Abraham Besra - P.W.3 dated 2.8.1994. 4. The prosecution case, in brief, is that the deceased Bablu had gone to plough his field. The informant alongwith the deceased sister Sunita Besra-P.W.5 were going to serve food to the deceased in the field, saw Bablu running away from the field. The appellant alongwith abovesaid two accused persons were chasing him and assaulted with lathi-danda indiscriminately. In their sight view Bablu fell down and died of grievous injuries inflicting on his head by the said accused persons. 5. On the basis of the said fardbeyan of the informant Police registered a case under Section 302/34 IPC and on conclusion of trial submitted the charge-sheet. 6. Charge was framed against the appellant under Section 302/34 IPC. He denied the charge and claimed to be tried. He was put on trial. 7. The prosecution, in order to establish the charges against the appellant, altogether examined six prosecution witnesses. P.W. 1 is an Advocate Clerk and is a formal witness, who proved the First Information Report (Exbt.-1); P.W. 2 is Dr. Satish Kumar Sinha who examined the dead body of the deceased and prepared the post mortem report. He has proved the said report. P.W.3 is the informant Abraham Besra who has supported the prosecution case. P.W.4, although said to be a person who was also ploughing his field nearby the field, has turned hostile and is said to be an independent witness. P.W.5 is the own sister of the deceased and said to be the another eyewitness. He has proved the said report. P.W.3 is the informant Abraham Besra who has supported the prosecution case. P.W.4, although said to be a person who was also ploughing his field nearby the field, has turned hostile and is said to be an independent witness. P.W.5 is the own sister of the deceased and said to be the another eyewitness. She tried to support the prosecution version, but has added one more weapon 'axe' with lathi which are said to be used in assaulting and causing death of Bablu-deceased. P.W.6 is the Investigating Officer. 8. learned Trial Court, on conclusion of trial, heavily relied on the evidences of P.W.3-the informani and P.W.5-another eye witness, P.W. 6-the Investigating Officer coupled with the medical evidence of P.W.2-Dr. Satish Kumar Sinha and on that basis found all the three accused persons guilty of committing the said offence and convicted and sentenced them, as aforesaid. 9. Mr. G.C. Sahu learned counsel for the appellant has assailed the impugned judgment on the following grounds:- (i) The ocular evidences are contrary to medical evidences and on that basis conviction under Section 302 does not sustain. P.Ws.3 and 5 are said to be eye-witnesses, but there are sharp contradiction in the testimony of the said witnesses regarding the manner of occurrence and the weapon used. P.W. 3-informant clearly stated that only lathi and danda were used in assaulting the deceased, whereas P.W.5 said to be the eye-witness, had added one more weapon 'axe'. However, nowhere it has been stated by her that who was holding that axe and who had inflicted axe injury. There are, thus, different version of the so-called eye witnesses. Their testimony is doubtful. (ii) Lathi is not a deadly weapon and as such chasing with lathi and assaulting the deceased with the said weapon does not come within the mischief of Section 300 of the I.P.C. The prosecution has heavily failed to prove the genesis of the case. (iii) Ocular evidence is contrary to the medical evidence. Charge under Section 302 of the I.P.C. is not established. Learned trial court keeping in view of the above should have acquitted the appellant, but placing reliance on the incredible testimony of the P.Ws.3 and 5 without taking into consideration, the sharp contradiction in the medical evidence, erroneously convicted the accused-appellant and passed erroneous order of sentence. 10. Mr. Charge under Section 302 of the I.P.C. is not established. Learned trial court keeping in view of the above should have acquitted the appellant, but placing reliance on the incredible testimony of the P.Ws.3 and 5 without taking into consideration, the sharp contradiction in the medical evidence, erroneously convicted the accused-appellant and passed erroneous order of sentence. 10. Mr. T.N. Verma, learned A.P.P., on the other hand, strongly supported the impugned judgment. He submitted that in view of the consistent evidence of P.Ws. 3 and 5 regarding assault on the deceased coupled with the injuries found on the deceased by the doctor, learned court below has rightly concluded and found the appellant and two other accused persons guilty for committing offence under Section 302 read with Section 34 of the Indian Penal Code. Learned counsel submitted that there was time gap between the occurrence and the date of deposition of the witnesses and some minor contradictions are bound to occur in the depositions, but it has been proved that Bablu died in the field nearby and his dead body was found by the Investigating Officer with injuries on his head. In view of the said weighty evidence of the eye witnesses ignoring some minor contradictions the charges against the accused persons have been fully established and they have been rightly convicted and sentenced. 11. Having heard learned counsel and learned A.P.P., we scrutinized the material on record. As aforesaid, P.W.1 Md. Tajuddin is a formal witness. He has proved the F.I.R. (Exbt.-1). P.W.2 is the Doctor, who conducted post mortem on the dead body of the deceased Bablu Besra. He found the following injuries: — (i) Incised wound 2" x 1" x scalp deep over right parietal area of skull; (ii) Incised wound 3" x 1" x scalp deep over right parietal area; (iii) Incised wound 4" x 1" x scalp deep over midline of head; (iv) Incised wound 1" x ½ x scalp deep over left parietal area; (v) Incised wound 3" x 1" x scalp deep in the back in the occipital region; (vi) Incised wound 1½" x ½” x scalp deep in occipital region in the middle of head; (vii) Bleeding from left ear; (viii) Bruises over the nose and nasal bones were broken. On dissection blood clots and haemorrhage were found underneath the periostium. On dissection blood clots and haemorrhage were found underneath the periostium. All the above injuries were caused by sharp cutting weapon except Injury No. (viii). Injury No. (viii) was caused by hard blunt substance such as lathi. Other injury may be caused by sharp cutting weapon such as may be 'kulhari'. 12. From the above we find that the Doctor has found all the injuries [(i) to (vi)] incised injuries on the head caused by sharp cutting weapon. However, he has found injuries (viii) caused by hard blunt substance such as lath is, i.e. bruises over the nose and nasal bones were found broken. The cause of death is failure of cardio-respiratory system due to haemorrhage and shock caused by the said injuries. 13. P.W.3 is the informant-Abraham Besra. He has supported his version of his fardbeyan that the accused persons had given only lathi bows on Bablu. In paragraph-1 he has said that on raising alarm by him several persons had assembled. It is relevant to mention here that no independent witnesses have been examined and one witness namely Massi Tuddu, who was examined, was declared hostile and has not supported the prosecution version. In paragraph-2 he has said that there was enmity between the accused persons and the deceased. In paragraph-4 he has fairly stated that he cannot say as to who had assaulted where. 14. P.W.5-Sunita Besra happens to be own sister of the deceased. It appears that being conscious with the fact of the incised wound and injury found on the head of the deceased, she has developed a story of use of axe (kulhari) and stated in paragraph-1 that the accused persons assaulted Bablu with lathi, danda and kulhari. However, in paragraph-9 of her deposition she was unable to say as to who had assaulted with kulhari and who assaulted with lathi and on which part of the body the injuries were inflicted. In paragraph-4 she says that 6-7 persons were ploughing their land in the vicinity and they had also assembled on hearing the alarm, but as aforesaid none of them except Massi Tudu has been examined. In paragraph-13 she has also stated that there was land dispute between the deceased and the accused persons. P.W.6 Mahendra Thakur is the Investigating Officer. He has stated that he found the dead body lying in the field of Charlis Hembrom. In paragraph-13 she has also stated that there was land dispute between the deceased and the accused persons. P.W.6 Mahendra Thakur is the Investigating Officer. He has stated that he found the dead body lying in the field of Charlis Hembrom. He in paragraphs-13 and 14 stated that the field to which Bablu was ploughing, was not shown to him and he has not inspected the place of occurrence. It is pertinent to mention that ploughing of the field by Bablu is said to be the genesis of the case, but the same has not been proved in the documentary evidence. Exbt.1 is the formal F.I.R.; Exbt.-2 is post mortem report, which has already been discussed. Exbt.-3 is the signature of Abraham Besra on the fardbeyan; Exbt.-1/1 is the signature of Mahendra Thakur-Investigating Officer on the F.I.R. and Exbt.-4 is the F.I.R. On proving and assessing the said evidences on record we found sharp contradiction between the statement of two eye-witnesses regarding the manner of occurrence and use of arms, medical evidences contradicting ocular evidences, development in the prosecution case by P.W.5 by adding 'axe' as a weapon used in committing the said alleged offence. The genesis has not been established by any evidence on record. 15. On the said conclusion we are unable to uphold the impugned judgment of conviction and the sentence passed against the appellant. There is no solid evidence on record to establish the guilt of the alleged charges under Sections 302/34 of the I.P.C. against the appellant. Though learned A.P.P. tried to support the impugned judgment we find no cogent evidences supporting the conclusion of conviction against the appellant. The contradictions, even in the ocular testimony, are sharp and the medical evidence is contrary to the ocular evidence. In Babuda vs. State of Rajasthan (reported in AIR 1992 SC 2091 ) the Hon'ble Apex Court has held that in absence of clinching evidence about the occurrence, guilt against the accused is not established. On mere suspicion, however strong, the conviction cannot be upheld. We are, therefore, unable to agree with the finding and conclusion of the trial court. 16. In the result, this criminal appeal is allowed. The judgment of conviction and the order of sentence dated 5.9.1997 passed by learned Additional Sessions Judge, Sahebganj in S.T. No. 198/1995 against the appellant is hereby set aside. We are, therefore, unable to agree with the finding and conclusion of the trial court. 16. In the result, this criminal appeal is allowed. The judgment of conviction and the order of sentence dated 5.9.1997 passed by learned Additional Sessions Judge, Sahebganj in S.T. No. 198/1995 against the appellant is hereby set aside. As the said appellant is in custody, he is ordered to be set at liberty forthwith, if not wanted in any other case.