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2010 DIGILAW 126 (JHR)

Majora Hembram v. State of Jharkhand

2010-01-27

J.C.S.RAWAT, JAYA ROY

body2010
JUDGMENT J.C.S. Rawat, J. : Oral.-This appeal has been preferred by the appellant against the judgment and order dated 16.9.1992 and 17.9.1992 respectively passed by the 4th Additional Sessions Judge, Singhbhum (West) at Chaibasa, in Sessions Trial No. 365 of 1990 whereby the appellant has been convicted under Sections 307/34 of the Indian Penal Code and Section 27 of the Arms Act and accordingly sentenced to undergo rigorous imprisonment for life under Sections 307/34 IPC and to undergo imprisonment for 7 years under Section 27 of the Arms Act. However, it was further directed that both the sentences would run concurrently. 2. Fact of the case, in a nutshell is that on 1.6.1989 at about 10.00 a.m. the informant Soma Biruli went to the house of Moyaka Samad of Village-Lokohato at about 10 a.m. to attend a feast hosted by Moika Samadh at his invitation. When he reached his house, he found that the food which was to be served in the feast was being cooked near his house and he went near his house where a Tamarind (lmli) tree was standing. When he was there, he found that scorching heat of the sun had compelled him to sit near the said tree alongwith his cousin Biga Biruli. Thereupon the appellant and the other co-accused, four in number, came at the spot and the appellant pointed a pistol towards the informant Soma Biruli PW-1 and fired upon him. Consequently, the said fire hit him at his right arm and the right chest. Immediately thereafter, the co-accused Rajesh hurled bomb upon the informant due to which he sustained injuries on his right eye brow. The said bomb was kept by co-accused Rajesh in his bag. The noise of the firing alarmed the people living nearby, who reached at the spot and saw that all the miscreants had left the scene of the occurrence by that time. It is also stated by the prosecution that several persons had seen the occurrence. Due to horror and fear of firearms, persons who reached at the spot did not dare to nab the appellant and other accused at the spot and they were allowed to go scot-free. It is also stated by the prosecution that several persons had seen the occurrence. Due to horror and fear of firearms, persons who reached at the spot did not dare to nab the appellant and other accused at the spot and they were allowed to go scot-free. The said incident occurred at about 1.00 p.m. and the injured informant PW-1 was taken to hospital immediately after the incident and he gave his statement as fardbeyan in the Chaibasa Civil Hospital at about 4.15 p.m. to the Investigating Officer. The Investigating Officer immediately registered, a case against the appellant and the other co accused which culminated into charge-sheet against the appellant and the other co-accused persons. 3. After submitting the charge-sheet, the learned Judicial Magistrate, 1st Class, at Chaibasa took cognizance of the offence and committed the case to the court of sessions as it was exclusively triable by the court of sessions. The accused appellant was charge-sheeted and charges were framed against him. He claimed trial before the trial court. 4. The prosecution in support of its case has examined four witnesses namely the informant Soma Biruli PW-1 who submitted his fardbeyan before the Police, PW-2 Chakro Purty and PW-3 Buran Singh Sam ad who claimed to be the eye-witnesses. But during trial, they did not support the prosecution version and resiled from the previous statement. So the prosecution declared them hostile. PW-4 is Dr. Raj Deo Prasad Singh who examined the injured/informant PW-1 on the same day at about 4.30 p.m. and he prepared the medical examination report (Ext.-1) at the time of medical examination of the injured. The prosecution could not produce rest of the witnesses in support of its case in spite of several opportunities given by the court and though processes were sent, the other witnesses could not be produced before the court. Even the Investigation Officer has not been produced before the court. The appellant has denied all the averments made against him in his statement recorded under Section 313 Cr. P.C. He has further stated that he has been falsely implicated in the case. 5. After appreciation of the evidence on record, the trial court has found the appellant guilty and convicted and sentenced him as indicated above. The other co-accused Mathura Hembrom and 'Mahanthi purty have been acquitted by the Additional Sessions Judge. So far as co-accused Rajesh is concerned, the learned Addl. 5. After appreciation of the evidence on record, the trial court has found the appellant guilty and convicted and sentenced him as indicated above. The other co-accused Mathura Hembrom and 'Mahanthi purty have been acquitted by the Additional Sessions Judge. So far as co-accused Rajesh is concerned, the learned Addl. Sessions Judge has observed that his trial was separated from the other accused persons as he was absconding during the course of the trial. 6. Heard the learned counsel for the appellant and the State. It needs to be mentioned here that there is no0 dispute that the informant PW-1 had sustained injuries on 1.6.1989 at the place of the occurrence. PW-4 is Dr. Rajdeo Prasad Singh who examined the informant Soma Biruli PW-1 on 1.6.1989 at 4.30 p.m. and found His following injuries on his person:1. (a) wound of entry (through and through) on right side of arm on lateral side having the size 1 W' x W' skin deep with multiple pellets spot on the arm skin; (b) wound of exit on the medial surface of right arm having its size 1112 x W' skin deep; 2. Multiple spots of pellets on mid auxiliary line of right side; 3. Lacerated wound found on the right side of forehead having its size 1" x %" X 112". 4. Bomb blast wound with charing on the left side of back having its size 3" x 2" with charing skin; 5. Lacerated wound on left peritooxipital region having its size 1 W' x W' X 112". 7. He further opined that the injuries could have been caused by firearms, bomb blast and hard and blunt substance. He further opined that the injuries were simpie in nature and were dangerous to life. He further opined that the injuries could - have been caused at the elate and time as given by the prosecution. He further opined that these injuries could not be self-inflicted injuries on the• person of the informant PW-1. PW-1 the injured informant has categorically stated that he sustained gun shot injury as well bomb injuries in the incident. Chakro Purti PW-2 and Buran Singh Sam ad PW-3 have stated in their evidence that immediately after the incident, they reached the spot and saw the injured informant PW-1 in an injured condition and he was taken to hospital. PW-1 the injured informant has categorically stated that he sustained gun shot injury as well bomb injuries in the incident. Chakro Purti PW-2 and Buran Singh Sam ad PW-3 have stated in their evidence that immediately after the incident, they reached the spot and saw the injured informant PW-1 in an injured condition and he was taken to hospital. These facts establish that the injuries of the informant PW-1 was sustained at the date, time and place of the occurrence. Now we have to see who is the author of the injuries on the person of the injured Soma Biruli PW-1. 8. According to the prosecution, the said firearm injuries have been caused by the appellant and the other injuries have been caused by the other co-accused persons. Learned counsel for the defence has stated that the appellant has been falsely implicated and he is not the author of the injuries on the person of the injured. The prosecution has adduced evidence of three witnesses who claimed to be eye witnesses during the course of cross-examination. PW-1 Soma Biruli is the injured informant of this case. He has stated that on the date of the occurrence he went to the house of Moika Samad on his invitation for having lunch in a feast hosted by him. When he was feeling heat due to heat of the Sun, he sat beneath the Tamarind tree alongwith his cousin. Thereupon the appellant and the other co accused appeared at the spot and the appellant fired upon the informant as a result of which he sustained injuries. The other co-accused Rajesh hurled bomb upon him by 'which also, he sustained injuries. He had not identified the other accused and he had identified only the appellant in the dock.' Thereafter he was cross-examined by the defence. He has categorically stated that the incident took place on the date of the occurrence during day hours and the appellant had fired a shot from behind his back and he could not see how he fired from behind, which hit on his forehead. Thereafter, he ran about 10-15 steps. from there. Thereupon, the appellant had again shot fire from the front side which also hit him on his chest. He has categorically stated that he had stated to the Investigating Officer at the time of his statement about two fires at the place of the occurrence. Thereafter, he ran about 10-15 steps. from there. Thereupon, the appellant had again shot fire from the front side which also hit him on his chest. He has categorically stated that he had stated to the Investigating Officer at the time of his statement about two fires at the place of the occurrence. He has further stated that the miscreants were about 5 to 6 in number and were holding pistols in their hands. It is important to note that he has made statement during the cross-examination against the interest of the prosecution. The prosecution had not prayed the trial court to permit them to cross-examine the- said witness. The prosecution has also adduced evidence of PW-2 Chakro Purty who, during investigation, claims to be an eye witness, but when he appeared before the trial court, he stated that he had heard that some incident had taken place in which the appellant and the other co-accused had assaulted the informant PW-1 on the date of the occurrence. Immediately after hearing the noise of the firearms and the bomb blast, he reached at the spot and saw that the persons who had participated in the incident had been fleeing away from the place of occurrence and he did not identify the accused appellant in court. He was declared hostile and he stated that he had not given any statement to the Investigating Officer. PW 3 Buran Singh Samadh has stated that the informant PW 1 had sustained injuries on the date of the occurrence, but he stated that had not seen the incident with his own eyes. He has further stated that the appellant and other co-accused persons had fired four/five shots upon the informant PW-1 by which he sustained injuries. The witness was declared hostile by the prosecution. PW-4 Dr. Rajdeo Prasad Singh is the Medical Officer in this case whose evidence has been discussed hereinabove in the preceding paragraph. 9. From perusal of the evidence on record, it is evident that the evidence of PWs-2 and 3 had not been relied upon by the trial court. The conviction has been based on the testimony of the informant PW-1 Soma Biruli and Dr. Rajdeo Prasad Singh PW-4. 9. From perusal of the evidence on record, it is evident that the evidence of PWs-2 and 3 had not been relied upon by the trial court. The conviction has been based on the testimony of the informant PW-1 Soma Biruli and Dr. Rajdeo Prasad Singh PW-4. The first and foremost point for consideration arises that in the fardbeyan the prosecution witness has narrated a different story of the prosecution that only one gun shot was fired which penetrated from right arm to the right chest of the informant PW-1. But when he appeared before the witness box, he has narrated a different story that two gun shots were fired, one from behind the informant, when he was sitting under the Imli tree. He has further stated that the second shot was fired when he was running from the place where he was sitting and it was 10-15 steps from there when the appellant fired at from front side of the injured. The injured informant sustained the said injuries on his person. Thus, there is specific averment that two shots have been fired. Apart from that, he has not identified the participation of the other co-accused in the incident. He only identified the appellant in the dock. Thus, it would have been proper to cross-examine the prosecution witness so that truth could have come out from his mouth. The testimony of the witness who was not declared hostile and the evidentiary value of the evidence of the witness would be fatal to the prosecution. The prosecution could not wriggle out of the statement of such witness, even though that witness may be injured. 10. In the case of Jugan M. Seshadri vs. State of T.N. [2003 SCC (Criminal) 1494]=[(2002)(IX) SCC 639] it has been held that the prosecution witness who had not been declared hostile, the prosecution cannot wriggle out of the statement of the witness even though the witness was the mother-in-law of the accused. In the case of Mukhtar Ahmed Ansari vs. State NCT of Delhi reported in (2005)5 SCC 258, the Apex Court has held as under:- "29. "The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this cage as PW-1. "The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this cage as PW-1. He, however, did not support the prosecution. The prosecution never declared PW-1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence". "30. A similar question came up for consideration before this Court in Raja Ram vs. State of Rajasthan. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared "hostile", The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution." 11. The witness in this case has categorically stated that two fires were made upon his person and whereas it is the case of the prosecution that only one shot was fired upon the injured Soma Biruli PW-1. Thus, the evidence of PW-1 is also inconsistent and contradictory and the prosecution cannot criticize his evidence that PW-1 has also resiled from his previous statement. For this, evidence of PW-1 cannot be taken into account and thus there is no evidence against the appellant by which it could be established that he was author of the injury on the person of the informant. 12. The next point for consideration is that the Investigating Officer has not been produced before the court. It is a well settled position of law that non-examination of the Investigating Officer is not vital when he was not produced before the court. Before taking the benefit of non-production of the Investigating Officer, the defence has to establish that his defence has been materially and substantially affected by non-production of the Investigating Officer. Non-production of Investigating Officer will only jeopardize the defence when material contradictions had come in the statement of the witnesses of the prosecution. It is not always necessary that even for minor contradictions, presence of the Investigating Officer is required. 13. Non-production of Investigating Officer will only jeopardize the defence when material contradictions had come in the statement of the witnesses of the prosecution. It is not always necessary that even for minor contradictions, presence of the Investigating Officer is required. 13. In the instant case, it is a peculiar fact that both the witnesses Chakro Purty and Buran Singh Samad, PWs-2 and 3, have been declared hostile, but the prosecution has tried to put the contradiction under Section 161 Cr.P.C. to establish that the prosecution witness was an eye-witness to the occurrence at the time of investigation and later on, he has been declared hostile. The Investigating Officer could not be put to prove the contradictions in the evidence of PW-2 Chakro purty and PW-3 Buran Singh Samad before the court. Apart from the above, even if we ignore the said fact, PW-1 who was not declared hostile, has categorically stated that two shots were fired at him at the spot, whereas in the fardbeyan, he has stated that only one shot was fired at the injured. He was further put to the question whether he has given the said description of two shots during his statement recorded under Section 161 Cr.P.C. by the Investigating Officer. He has stated that he had stated this fact before the Investigating Officer. Non-production of the Investigation Officer would prejudice the defence of the appellant in the peculiar facts of this case. Had the Investigating Officer been produced, he could have stated whether he had stated this fact or not, or he had improved the version of the prosecution at the trial. If he would not have stated this fact during investigation, it would have been of some significance to the defence because the FIR is not the encyclopedia of all the material facts which have been stated therein. FIR is lodged to set the law in motion and to start investigation. The Investigating Officer would have stated as to when he recorded statement of PW-1 Soma Biruli. If such statement would not have been recorded on the same day, it could be of avail to the defence, but here non-production of the Investigation Officer has certainly prejudiced the defence of the appellant. 14. In view of the above, we are of the view that the prosecution could not establish the participation of the appellant in the commission of the offence. 14. In view of the above, we are of the view that the prosecution could not establish the participation of the appellant in the commission of the offence. As such there is no need to discuss the evidence under Section 27 of the Arms Act. 15. The prosecution has failed to prove the case against the appellant beyond all shadow of doubts. The appeal is liable to allowed. The trial court has erred in convicting the appellant. The appellant is entitled to get his acquittal. 16. For the reasons aforesaid, this appeal is allowed. The conviction and sentence of the appellant by the trial court in Sessions Trial No. 365 of 1990 is hereby set aside. The appellant is on bail. He is acquitted of the charge and discharged from the liabilities of the bail bonds.