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2009 DIGILAW 996 (JHR)

Bajoon Murmu v. State of Jharkhand

2009-07-20

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court This appeal has been filed by the appellant from the Jail. The appellant has challenged his conviction and sentence passed by the Trial Court whereby he has been convicted under section 302 of the Indian Penal Code and has been sentenced rigorous imprisonment for life vide impugned Judgment dated 17.06.2002 in Sessions Case No. 97 of 97/29 of 97 by the Additional Sessions Judge, Pakur. 2.The prosecution case in brief is that on 05.07.1996 at about 11:00 a.m., one Bale Kisku (P.W.-7) went to his neighbour’s house Raman Tudu (deceased) and called him at his door. Raman Tudu (deceased) and his wife Gangan Muni Soren (informant) also reached there and then saw that Barka Hansda, Ramtudu, Lambat Hembram, Bishnu Singh were sitting there, Bishnu Singh and Raman Tudu asked Bale Tudu to bring liquor. Bale brought liquor and thereafter, all the four drank together. When Raman Tudu and others were drinking liquor at that time, the appellant Bajoon Murmu came there and on seeing them drinking, he went back. Further case of the prosecution is that Bishnu Singh, Lambat Hembram and Barka Hansda, after completing his drink, returned and Raman Tudu (deceased) was lying on the ground. At about 12:00 noon, the appellant again came to the place holding Lathi and then he gave one Lathi blow on the temple of Raman Tudu who was lying on the ground due to which, blood started oozing out from his temple and he died at the spot. The informant Ganga Muni Soren was present at the place of occurrence and when she raised Hulla, then the villagers assembled there and thereafter, she narrated the story to them. According to the informant, the appellant was on enimical terms with her husband due to some land dispute and on earlier occasion also, he had threatened her husband to kill. 3.In course of trial, altogether eight witnesses were examined on behalf of the prosecution to establish the charges. Out of the aforesaid P.Ws., P.W.-1 namely Masih Tudu and P.W.-6 Chunku Marandi are the eye witnesses to the occurrence and the learned Trial Court, on the basis of their evidence, has held the appellant guilty. Other witnesses examined on behalf of the prosecution are either formal or hearsay, therefore, are not of much importance. 4.Mr. Out of the aforesaid P.Ws., P.W.-1 namely Masih Tudu and P.W.-6 Chunku Marandi are the eye witnesses to the occurrence and the learned Trial Court, on the basis of their evidence, has held the appellant guilty. Other witnesses examined on behalf of the prosecution are either formal or hearsay, therefore, are not of much importance. 4.Mr. S.N. Roy, learned amicus curiae, appearing on behalf of the appellant submitted that if the evidence of the so called two eye witnesses i.e. P.Ws. 1 and 6 are scrutinised minutely then it would appear that they are in fact not eye witnesses. He also pointed out that the most important witness i.e. the informant Ganga Muni Soren who was an eye witness to the occurrence, has not been examined by the prosecution for the reasons best known to it. He submitted that though the prosecution miserably failed to prove the charges but even then, the learned Trial Court has convicted and sentenced the appellant. 5.We have gone through the evidence of the prosecution witnesses particularly the evidence of the P.W.-1 namely Masih Tudu and P.W.-6 Chunku Marandi who have deposed as the eye witnesses to the occurrence. P.W.-1 Masih Tudu, in his examination-in-chief has stated that he saw the appellant coming to the place of occurrence and then saw that he gave one Lathi blow on the temple of Raman Tudu who was already lying on the ground in an intoxicated state. In his cross examination, this witness has stated that he reached at the place of occurrence at his own and not after hearing any Hulla and when he reached at the place of occurrence, he found Raman Tudu (deceased) was sleeping on the ground. He further stated in cross examination that the appellant assaulted the deceased while he was in that lying condition. P.W.-6 Chunku Marandi, in her examination-in-chief has stated that in her courtyard, the appellant assaulted the deceased by means of Lathi and thereby, killed him. In cross examination, she specifically stated that at the time when Raman Tudu was being assaulted, none other than her was present at that time. After that, she rushed to call her husband. P.W.-6 Chunku Marandi, in her examination-in-chief has stated that in her courtyard, the appellant assaulted the deceased by means of Lathi and thereby, killed him. In cross examination, she specifically stated that at the time when Raman Tudu was being assaulted, none other than her was present at that time. After that, she rushed to call her husband. 6.If we believe the evidence of P.W.-6 Chunku Marandi, then as per her evidence, at the time of assault being made to the deceased by the appellant, except this witness, no other person was present at the relevant time in the place of occurrence. In view of this statement of P.W.-6, the presence of P.W.-1 at the relevant time and date and place of occurrence becomes doubtful. 7.The informant in her Fardbayan has stated that after the assault, she raised Hulla and on hearing Hulla, the villagers namely Masih Tudu, Beran Tudu, Biram Tudu etc. came there and saw the occurrence. As per the Fardbayan of the informant, the eye witness i.e. Masih Tudu (i.e. P.W.-1) came only after hearing ‘Hulla’ raised by her. Therefore, it is clear that at the time of actual assault, he was not present at the place of occurrence. In such a situation, it is difficult to rely on the evidence of P.W.-1 Masih Tudu. 8.So far P.W.-6 Chunku Marandi is concerned, the informant in her Fardbayan has not stated that this witness P.W.-6 was present at the place of occurrence at the alleged date and time of occurrence or even that she arrived at the place of occurrence on hearing ‘Hulla’ of the informant. This fact gets substantiated from their evidence also as elicited in her cross examination where she has admitted that she had stated before the police that when she returned home she found the deceased dead lying on the ground. This fact clearly indicates that P.W.-6 was never an eye witness to occurrence. 9.As it appears that Investigation Officer has not been examined by the prosecution and due to the non examination of the Investigation Officer, the defence has been prejudiced since his attention could not be drawn against the vital contradictions in the evidence of P.Ws-1 and 6. This fact clearly indicates that P.W.-6 was never an eye witness to occurrence. 9.As it appears that Investigation Officer has not been examined by the prosecution and due to the non examination of the Investigation Officer, the defence has been prejudiced since his attention could not be drawn against the vital contradictions in the evidence of P.Ws-1 and 6. 10.Taking into consideration all the facts and circumstances stated above, we do not find sufficient evidence to affirm the conviction and sentence against the appellant passed by the Trial Court rather we find the evidence of the prosecution to be weak and unreliable. 11.Thus, on consideration of the facts and evidence discussed above, in our view, the prosecution has not been able to establish the charges beyond all reasonable doubts. 12.In view of the discussions and findings above, this appeal is allowed. The conviction and sentence passed by the Trial Court is hereby set aside. The appellant, who is on bail, is discharged from the liability of bail bonds.