Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 483 (JHR)

Rashilal Tudu 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 16.9.2002 and 17.9.2002 respectively passed by 1st Additional Sessions Judge, Jamtara in S.C. No. 58 of 2000/ S.C. No. 03 of 2001 whereby and where under the appellant has been convicted under sections 436 and 450 of the IPC and sentenced to undergo R.I. for five years under section 436 of the IPC and further directed to pay fine of Rs, 1000/ and in default of payment of fine undergo R.I. for six months. The appellant further sentenced to undergo R.I. for four years under section 450 IPC and directed to pay fine of Rs. 1000/ and in default of payment of fine undergo R.I. for six months. 2. The case of prosecution in short as per the written report is that Rashilal Tudu (appellant) along with Manohar Tudu, Srijal Tudu, Satish Tudu and Balai Tudu alleged that informant's wife is a witch (Dian). It is further alleged that on 27.6.1997 at about 8 p.m., they forcibly entered in the house of informant and then appellant (Rashilal Tudu) put fire in his house. It is stated that the informant and inmates of his family took shelter in another house due to fear, as the appellant and other co-accused threatening to kill them. It is further stated that due to the aforesaid fire, cloths, hen and other articles, kept in the house, had burnt. 3. On the basis of aforesaid information Kundahit P.S. Case No. 43 of 1997 under sections 147, 323, 436, 427of the IPC instituted and police took up investigation. It appears that after investigation, police found that the occurrence is not true, accordingly submitted final form in the court of ACJM, Jamtara. It then appears that a protest petition filed in the court of ACJM, Jamtara, which was registered as P.C.R. Case No. 265 of 1998. It then appears that after examining the informant and other witnesses, learned ACJM took cognizance against the appellant and other co-accused under sections 147, 148, 149, 436/34 and 450 of the IPC. Thereafter the case committed to the court of Sessions as the offence under section 436 of the IPC is exclusively triable by the court of Sessions. 4. It then appears that after examining the informant and other witnesses, learned ACJM took cognizance against the appellant and other co-accused under sections 147, 148, 149, 436/34 and 450 of the IPC. Thereafter the case committed to the court of Sessions as the offence under section 436 of the IPC is exclusively triable by the court of Sessions. 4. It appears that learned Sessions Judge vide his order dated 26.5.2000 framed and explained the charges to the appellant and other co-accused under sections 147,148, 149, 436/34 and 450 of the IPC to which they pleaded not guilty and claimed to be tried. Thereafter, prosecution examined altogether six witnesses in support of its case. Learned 1st Additional Sessions Judge after considering the evidence available on record acquitted Manohar Tudu, Srijal Tudu, Satish Tudu and Balai Tudu from the charges levelled against them. However on the basis of same set of evidence, he convicted and sentenced the appellant (Rashilal Tudu) as stated above against that the present appeal has been filed. 5. It is submitted by learned counsel for the appellant that in the instant case there is no eye witness of the occurrence. It is further submitted that the police after thorough investigation came to the conclusion that no such occurrence took place. In that view of the matter, the learned trial court ought to have scrutinized the evidence more carefully. It is submitted that on the same set of evidence all other accused persons acquitted, which shows that learned court below had partly disbelieved the prosecution witnesses. Thus the conviction of appellant on the same set of evidence, without corroboration from any independent source, is not warranted. Accordingly, it is submitted that the appellant is entitled to be acquitted from the charges levelled against him. 6. Learned Additional P.P. supports the impugned judgment and submits that since all the witnesses stated that the appellant put fire in the house of informant, therefore, the court below rightly convicted the appellant for the charges levelled against him. Hence no interference required by this Court. 7. Having heard the submission, I have gone through the record. P.W. 2 Bodi Murmu is the son of informant, P.W. 3 Maharani Murmu is the daughter of informant, P.W. 4 Sanadi Hansda is the wife of informant, P.W. 5Baburam Murmu is the informant himself. Hence no interference required by this Court. 7. Having heard the submission, I have gone through the record. P.W. 2 Bodi Murmu is the son of informant, P.W. 3 Maharani Murmu is the daughter of informant, P.W. 4 Sanadi Hansda is the wife of informant, P.W. 5Baburam Murmu is the informant himself. P.W. 1 Dhananjay Tudu is a covillager whereas P.W. 6 is a formal witness. 8. P.W. 1 has stated that his house situates in front of the house of Baburam. He stated that on the date of occurrence at about 3 p.m. Manohar Tudu, Rashilal Tudu, Srijal Tudu, Satish Tudu and Balai Tudu came to the house of Baburam Tudu and alleged that informant's wife is a witch and due to witchcraft played by her the cattles of the village were dying. He further states that again in the night, the aforesaid persons came armed with lathi and entered in the house of Baburam and threatened, thereafter Rashilal put fire in the house of Baburam by lighting match box. However, during the cross examination, this witness stated that in the night when the occurrence took place he was under a tree situated near village pond. He further states that the said pond situates at a distance of 300 to 400 yards from the place of occurrence. He further states that he went to the place of occurrence after hearing hulla. 9. P.W. 2 who is son of informant, in his examination in chief, supported the prosecution case as an eyewitness, but in the cross examination he admits that at the time of occurrence he and his other family members were inside the house and they came out of the house after seeing fire. He further deposed that after seeing the fire villagers arrived at the place of occurrence and and they disclosed the name of the person who put fire in his house. 10. P.W. 3, the daughter of informant, also stated in her cross examination that at the time of occurrence, the yare inside the house and when the accused persons fled away, they came out of the said house. In the cross examination she further states that she came out of the house at 3 o'clock in the night. P.W. 4 the wife of informant had stated in her examination in chief that when the accused persons threatened them, they entered inside the house. In the cross examination she further states that she came out of the house at 3 o'clock in the night. P.W. 4 the wife of informant had stated in her examination in chief that when the accused persons threatened them, they entered inside the house. During cross examination she stated that after seeing the fire she came out of the house. P.W. 5 the informant in his cross examination has stated that at the time of occurrence, he was inside his house. He further stated that when the accused persons fled away then he came out of the house and thereafter raised alarm. He further deposed that after hearing the alarm villagers including Dhananjay Tudu came. 11. Thus from perusal of evidence of P.W. 3,4 and 5, it is clear that at the time of occurrence they were inside the house and they came out of the house only after the accused persons fled away. The claim of P.W. 1 that he saw the appellant putting fire in the house of informant does not inspire confidence, because he himself admits that at the time of occurrence, he was present near the village pond which situates at a distance of 300 to 400 yards from the place of occurrence. This witness further stated that he reached at the place of occurrence after hearing hulla. P.W. 5 (the informant of this case) categorically stated that when the accused persons fled away, he came out of his house and then raised alarm, thereafter villagers including Dhananjay Tudu (P.W.1) arrived. Thus the claim of P.W. 1 that he witnessed the occurrence from his own eyes is not acceptable. P.W. 2 who is son of informant had categorically stated that when the accused persons fled away he and other family members came out of the house. He further deposed that villagers who arrived at the place of occurrence had disclosed the name of persons who put fire in his house. Thus, the aforesaid statement of P.W.2 goes to show that none of his family members witnessed the occurrence. Thus, the claim of P.W. 2,3,4 and 5 that appellant Rashilal Tudu put fire in their house does not inspire confidence. 12. Thus, the aforesaid statement of P.W.2 goes to show that none of his family members witnessed the occurrence. Thus, the claim of P.W. 2,3,4 and 5 that appellant Rashilal Tudu put fire in their house does not inspire confidence. 12. It is worth mentioning that learned trial court disbelieved the prosecution witnesses so far co-accused Manohar Tudu, Srijal Tudu, Satish Tudu and Balai Tudu are concerned, it is admitted position that P.W. 2,3,4 and 5 are closely related to each other whereas from the perusal of cross examination of P.W. 1 read with P.W. 5 it appears that P.W. 1 is not an eye witness. Under the aforesaid circumstance, the prosecution witnesses are not wholly reliable. It is worth mentioning that police after investigation came to the conclusion that the occurrence is not true, therefore, submitted final form. 13. Under the aforesaid circumstance, in the absence of any corroboration from independent source, I find that the prosecution has not been able to bring home the charges levelled against the appellant beyond the shadow of all reasonable doubt. Thus, I find that learned court below committed serious illegality and/or regularity in convicting the appellant under section 436 and 450 IPC. Thus the impugned judgment cannot be sustained. 14. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence is setaside. The appellant is acquitted from the charges levelled against him. It appears that the appellant is on bail, he is accordingly, discharged from the liability of his bail bond.