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2009 DIGILAW 865 (JHR)

Chandan Hansda v. State of Bihar (now Jharkhand)

2009-06-23

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT : By Court The sole appellant Chandan Hansda has challenged the impugned judgment dated 19/01/1991 passed by the 4th Additional Sessions Judge, Dumka Camp at Pakur in Sessions Case No. 53 of 1987/ 34 of 1989, whereby the trial court has convicted the appellant for the charge under Section 302 IPC and sentenced him to undergo R.I. for life. 2. The facts, in short, are that the informant Milcho Baski (PW-2) gave a Fardbeyan on 24/02/1985 at 3.30 p.m. alleging therein that she and her three children were sleeping in her house and her husband namely Som Murmu (deceased) was also sleeping in a separate cot. Her two daughters Sita Murmu and Kapra Murmu were sleeping in the southern room whereas her father-in-law was sleeping in western Verandah of the house. In the dead night at about 1.00 a.m. some unknown persons dashed on the doors of her room, due to which she and her husband woke up and then saw that three persons were trying to enter in her house. Her husband tried to close the door but he failed. The accused persons entered in her house and started assaulting her husband indiscriminately by means of ‘Lathi’ due to which her husband received head injuries and blood started coming out from his wound. The informant went to save her but she was also given two Lathi blows on her head by the accused persons due to which she also received bleeding injuries. Her husband fell on the ground and died. Hearing her cries, the neighbours assembled there but in the meantime, the accused persons fled away. The cause of the occurrence was said to be that a month back her son-in-law Chandan Hansda, was beating her daughter, which was objected to by the informant’s husband and when he did not listen then the informant’s husband Som Murmu assaulted Chandan Hansda by means of a ‘Lathi’, due to which Chandan Hansda was having grudge. The informant further alleged that she had suspicion that Chandan Hansda might have hands in killing of her husband. On the basis of the said Fardbeyan, the FIR was registered by the police against unknown. 3. The informant further alleged that she had suspicion that Chandan Hansda might have hands in killing of her husband. On the basis of the said Fardbeyan, the FIR was registered by the police against unknown. 3. The police took up the investigation and on completion thereof submitted charge sheet, on the basis of which, the cognizance was taken, the case was committed to the Court of Sessions where charge under Section 302 IPC was framed against the appellant, to which he denied and, thereafter, the appellant was put on trial. 4. In order to establish the charges, altogether 9 witnesses were examined on behalf of the prosecution. The trial court on the basis of the materials on record convicted and sentenced the appellant as already stated herein above. 5. The learned counsel appearing for the appellant submitted that though the prosecution miserably failed to establish the charge against the appellant, even then the learned trial court has wrongly and illegally convicted and sentenced him under Section 302 IPC. Elaborating his argument, he has submitted that the trial court has convicted the appellant only on the basis of the uncorroborated testimony of PW-2. Assailing the judgment of conviction and sentence, the learned counsel further submitted that the appellant is none else than the son-in-law of the informant PW-2. The informant did not name the appellant in the FIR rather she only suspected his hands in the said occurrence but curiously enough in her evidence, she by changing her stand has alleged that it was this appellant who assaulted her husband by means of ‘Lathi’. It is also pointed out that though according to the FIR and the evidence of the informant, the deceased Som Murmu was assaulted indiscriminately by means of ‘Lathi’ by the accused persons, but strangely, the Doctor has found only a single injury on the head of the deceased and, therefore, it is clear that there is vital contradiction in oral and medical evidence, which makes the case of the prosecution doubtful and unreliable. 6. On the other hand, the learned APP has submitted that the informant is an eye-witness to the occurrence and she has narrated the truth what she saw and there is no reason as to why she would falsely implicate her own son-in-law in a false case. 7. 6. On the other hand, the learned APP has submitted that the informant is an eye-witness to the occurrence and she has narrated the truth what she saw and there is no reason as to why she would falsely implicate her own son-in-law in a false case. 7. In order to test the rival submissions of the parties, we have scrutinized the oral and documentary evidence laid by the prosecution. The occurrence is said to have taken place in the dead night of 24/02/1985 at about 1.00 a.m. and, therefore, naturally the witnesses to the occurrence would be only the inmates of the house and none else. 8. The informant PW-2 in her evidence in court in para-3 has stated that the appellant, his father and uncle, all entered in her house on the alleged date and time of the occurrence and they all assaulted her husband and when she went to save him she was also assaulted on her head due to which she received injury. Her husband fell down and died. In the opening paragraph of her cross-examination, she has stated that whatever she has alleged in the FIR was correct and she put her signature after the same was read over to her. In her cross-examination, she has further stated that she has identified the appellant, his father and uncle as the assailants at the time of occurrence. 9. It is not disputed that the FIR was registered against unknown and on perusal of the Fardbeyan, it appears that the informant did not state even a single word that she identified this appellant or any other accused as the assailant of her husband. If the informant would have identified this appellant as the assailant of her husband then she must have named him in her Fardbeyan. The appellant is her son-in-law and, therefore, she may not have any difficulty in identifying her son-in-law and naming him in the FIR. As a matter of fact, none of the accused has been named in the Fardbeyan. Therefore, it is apparent that the informant has subsequently, changed her story and has developed the case in order to suit the prosecution. 10. The allegation made in the FIR and the statements of the informant in course of trial are not only contradictory to each other but are also inconsistent with the medical evidence. Therefore, it is apparent that the informant has subsequently, changed her story and has developed the case in order to suit the prosecution. 10. The allegation made in the FIR and the statements of the informant in course of trial are not only contradictory to each other but are also inconsistent with the medical evidence. In the FIR as well as in her evidence, the informant has stated that her husband (the deceased) was assaulted by means of ‘Lathi’ indiscriminately by the accused persons but on perusal of the evidence of the Doctor, who held the Post Mortem examination, it would appear that the deceased had received only one injury on his head. If, in fact, the deceased would have been given indiscriminate ‘Lathi’ blows then more than one injury must have been found on the person of the deceased. Presence of only a single injury on the person of the deceased suggests that the prosecution has failed to establish the manner of occurrence also as alleged by it. In this view of the vital contradictions and serious infirmities in the evidence of the informant PW-2 and in the prosecution case, it would be most unsafe to rely on such evidence for basing the conviction and sentence against the appellant. There is no other evidence and materials on record to connect the appellants for the charges framed against him 11. In view of the above discussions and findings, we hold that the learned trial court has committed grave error in holding the appellant guilty for committing the murder of Som Murmu and, thereby, wrongly convicted and sentenced him for the charge under Section 302 IPC. The impugned judgment of the trial court cannot be sustained in law. Accordingly, this appeal is allowed. The impugned judgment of the trial court is hereby set aside and the appellant is acquitted from the charge under Section 302 IPC. The appellant, who is on bail, is discharged from the liabilities of his bail bonds.