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2010 DIGILAW 478 (JHR)

Siren Murmu v. State of Jharkhand

2010-04-16

PRASHANT KUMAR

body2010
JUDGMENT Prashant Kumar, J.-This appeal is directed against the judgment of conviction and order of sentence dated 30.9.2002 and 3.10.2002 respectively passed by Additional Sessions Judge, 'F.T.C.-I, Pakur in Sessions Case No. 108 of 2001/122 of 2002 whereby and whereunder the appellant has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo R.1. for 5 years and directed to pay fine of Rs. 500/- and in default of payment of fine, further sentenced to undergo R.1. for 2 months. 2. The case of the prosecution, in short, is that on 10.6.2001 at 10 P.M. the informant (P.W.-5) had gone to the house of Wakil Rajwar for purchasing liquor. It is further stated that while he was returning from there and when he reached near the house of appellant, suddenly appellant came and abused him. It is further alleged that appellant assaulted him with fists. It is stated that when he protested, appellant took out a knife from his waist and gave a knife blow on his chest. It is further' alleged that appellant gave him repeated blow of knife. It is stated that on the alarm, raised by the informant, his brother Wakil Murmu arrived and tried to rescue him. It is further alleged that in course of occurrence, Wakil Murmu also received injury. 3. On the basis of aforesaid information, Pakur (T) P.S. Case No. 128 of 2001 dated 11.6.2001 under Sections 323/ 324/341/307 of the Indian Penal Code instituted and police took up investigation. After completing the investigation, police submitted charge-sheet under Sections 323/324/341 & 307 IPC. It appears that after cognizance, case committed to the Court of Sessions, as the offence' under Section 307 IPC is exclusively triable by the Court of Sessions. 4. After commitment, Assistant Sessions Judge, Pakur vide order dated 7.12.2001 framed and explained the charge to the appellant under Section 307 of the IPC, to which he pleaded not guilty and claimed to be tried. Thereafter, prosecution examined altogether eight witnesses in support of its case. After close of case of prosecution, the statement of appellant recorded under Section 313 of the Cr. P.C. in which his defence is of total denial. Thereafter learned court below after considering the evidences available on record, convicted and sentenced the appellant as stated above, against that the present appeal has been filed. 5. After close of case of prosecution, the statement of appellant recorded under Section 313 of the Cr. P.C. in which his defence is of total denial. Thereafter learned court below after considering the evidences available on record, convicted and sentenced the appellant as stated above, against that the present appeal has been filed. 5. While assailing the impugned judgment learned counsel for the appellant submitted that in the instant case, prosecution has not proved the genesis of occurrence. It is further submitted that the manner of occurrence, as stated by the informant is not supported by the Doctor (P.W.-8). It is further submitted that on the same day and time, the informant and his brother assaulted the appellant and his wife for that an F.I.R. had already been lodged in the police station, prior to the lodging of the present F.I.R. It is submitted that the prosecution witness admitted that the appellant and his wife received injury, but the said injuries had not been explained by the prosecution, which casts a serious doubt on the case of prosecution. Accordingly, it is submitted that learned court below had committed serious illegality and irregularity in convicting the appellant. 6. On the other hand, learned APP submitted that injured (P.W.-5) and other prosecution witnesses had fully supported the case of prosecution. It is then submitted that their statements find full corroboration from the medical evidence. Accordingly, it is submitted that there is no illegality and irregularity in the impugned judgment which requires any interference by this Court. 7. Having heard the submissions, I have gone through the record of the case. In the instant case, informant has gone to the house of Wakil Rajwar for purchasing liquor. Further case of the prosecution is that, while informant was returning from the house of Wakil Rajwar and when he reached near the house of appellant, present occurrence took place. Wakil Rajwar has been examined by the prosecution as P.W.-3. This witness stated at paragraph no. 6 of his deposition that the informant had not come to his house for purchasing liquor. Aforesaid statement of Wakil Rajwar (P.W.-3) creates a serious doubt on the genesis of occurrence. 8. Wakil Rajwar has been examined by the prosecution as P.W.-3. This witness stated at paragraph no. 6 of his deposition that the informant had not come to his house for purchasing liquor. Aforesaid statement of Wakil Rajwar (P.W.-3) creates a serious doubt on the genesis of occurrence. 8. In the fardbeyan, the informant (P.W.-5) stated that after giving knife blow on his chest, appellant gave repeated blow of knife on his body, but from perusal of evidence of Doctor (P.W.-8), I find that Doctor found only one incise wound on the body of informant. Thus the manner of occurrence stated by the informant (P.W.-5) does not find support by the medical evidence. P.W.-1 stated that when he reached to the place of occurrence, he saw that the appellant inflicted knife blow on the chest of informant. The informant in his fardbeyan had stated that appellant took out knife from his waist" and gave knife blow on his chest and thereafter gave repeated blow of knife, then he raised alarm and on hearing the said alarm, his brother Wakil Murmu arrived'. Therefore, according to informant, when he received knife blow on his chest, no witness was present at the place of occurrence. Thus it appears that P.W.-1 is not an eye witness. 9. Prosecution witness no. 3 Wakil Rajwar has stated that on the date of occurrence, in the night, at about 10:00 P.M: he heard hulla and carne out of his house and saw that informant and his brother were assaulting the appellant (Siren Murmu). He further deposed that he saw injuries on the body of appellant and found blood on his entire body. He also stated that he took appellant to police station for lodging information on the same day. Officer-in-charge, P.W.-7, admitted at paragraph no. 7 that he recorded the statement of Siren Murmu at 4:45 A.M. P.W.5, informant, admitted at paragraph no. 13 of his deposition that he saw Siren Murmu in the hospital. Thus it is an admitted position that appellant also received injuries on the day and time of occurrence. Sut from perusal of first information report as well as from the deposition of prosecution witness, I find that the said injuries of appellant has not been explained by the prosecution. 10. It has been. Thus it is an admitted position that appellant also received injuries on the day and time of occurrence. Sut from perusal of first information report as well as from the deposition of prosecution witness, I find that the said injuries of appellant has not been explained by the prosecution. 10. It has been. held by their Lordships of Supreme Court in a decision reported in (1976) IV see 394 that "non-explanation of the injuries on the person o(accused received at about the time of occurrence/or in the course of altercation is a very important circumstances from which the court can draw the following inferences:- (i) That the prosecution has suppressed the genesis and origin of the occurrence and thus not presented the true version. (ii) The witnesses have denied the presence of injuries on the person of accused are lying on the material points and therefore their evidence is unreliable. (iii) That in the case there .is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case". In the instant case, as noticed above, P.W.-3 had categorically stated that at the' time of occurrence, the appellant was assaulted by the informant and his brother and he received serious injuries, as the blood spread on his entire body. The aforesaid version further finds support from the Investigating Officer who accepted that he has recorded fardbeyan of appellant at 4:40 A.M. in the morning itself. It is an admitted position that there was previous enmity between the parties in connection with bamboos and trees. Under the aforesaid circumstance, non-explanation of, injuries on the person of appellant cast a serious doubt on the case of prosecution. 11. Aforesaid aspect of the matter has not been considered by the learned court below, though the said facts are available on record. Thus, I find that the impugne judgment suffers from material illegality and irregularity. Accordingly, I conclude' that prosecution not proved the charge levelled against the appellant beyond the shadow of all reasonable doubts. 12. In the result, this appeal is allowed. Impugned judgment of court below is set aside. Appellant is acquitted from the charge levelled against him. He is also discharged from the liabilities of bail bond furnished by him.