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2011 DIGILAW 102 (JHR)

Harendra Shukla v. State of Jharkhand

2011-02-17

R.R.PRASAD, SUSHIL HARKAULI

body2011
JUDGMENT By Court.-The appellant, on being found guilty for committing murder of one Baijnath Bhuian, was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment of life and to pay a fine of Rs. 5,000/- and further a simple imprisonment for three months in default of payment of fine. 2, The case of the prosecution is that on 19.11 .1987 while one Sarita Devi was plucking Sag in a field in the evening, the appellant came .over there and caught hold of her hand and started taking her away forcibly. On seeing this, the deceased-Baijnath Bhuian raised an objection over his misdeed which caused annoyance to the appellant and hence, he held out a threat to the deceased of dire consequence and left that place. When Baijnath Bhuian came home after the sunset, he informed about the aforesaid incident to his mother-Fulmatia Devi, informant (P.W. 1). After sometime at about 8-9 p.m. while the deceased, his mother, Fulmatia Devi and others were taking dinner, the appellant came there and asked for Tobacco from Baijnath Bhuian (deceased). The deceased told him that Tobacco is not with him. Thereupon, the appellant took Baijnath Bhuian away with him on the pretext that he will get Tobacco for him. The family members did not mind this as the appellant was in visiting term. Thereafter, the father of the deceased started treating his ailing grandson indigenously. They remained busy till late night. In the next morning, Mainwa Devi (P.W.3), the daughter-in-law of the informant, who had slept in the house of the informant in the night when came to her house, she found the deceased lying dead in one of the rooms. There the blood had spilled on the ground. When hue and cry was raised, several persons got assembled. P.W. 8, the then Officer-in-charge of Patan Police Station on receiving a rumour of that a man has been killed, came to the village and recorded the Fardbeyan (Ext.-1) of Fulmatia Devi (P.W.-1), the mother of the deceased. On inspection of the place of occurrence, he did find blood on the ground near the dead body. Blood spots were also there over the wall. It was seized under a seizure list. 3. The Investigating Officer after holding inquest on the dead body, sent it for post mortem examination, which was conducted by Dr. On inspection of the place of occurrence, he did find blood on the ground near the dead body. Blood spots were also there over the wall. It was seized under a seizure list. 3. The Investigating Officer after holding inquest on the dead body, sent it for post mortem examination, which was conducted by Dr. Bishwanath Ojha (P.W. 7), who on holding post mortem examination found the following injuries:- One lacerated wound over and in front of right external ear 1.5" x 2" x 2" directing backward and downward at the base of skull and upper part of the neck; Charring was found around the margin of the wound. On dissection, the Doctor did notice complete destruction of middle and internal ear; mandible as well as upper vertebra was found fractured, 27 small pieces of pillets and two pieces of wads were recovered from upper region of the neck and base of skull; The Doctor issued postmortem examination report (Ext.-3) with an opinion that the death was caused due to shock and haemorrhage as a result of aforementioned injuries. 4. On completion of the investigation, the charge-sheet was submitted then on committal of the case, the accused was put on trial. 5. The prosecution in order to prove its case, examined as many as 8 witnesses. Of them, P.W. 1 Fulmatia Devi is the informant, who has testified that the appellant in the night, came to her house and took the deceased with him on the pretext of giving Tobacco. She has also stated about the motive. P.W. 2 Bhuneshwar Bhuian, the husband of the informant is the hearsay witness, who came to know from P.W. 1 that the appellant has taken the deceased with him. P.W. 3-Mainwa Devi, the daughter-in-law of the informant, has testified regarding deceased being taken by the appellant. She has also testified that while she was plucking a sag alongwith Sarita Devi and others, the appellant came and tried to take Sarita Devi with him forcibly, which was objected to by the deceased, upon which the appellant held out a threat of dire consequence. She has also testified that the deceased was taken in the night by the appellant but the deceased never returned rather his dead body was found in her house in the next morning. 6. She has also testified that the deceased was taken in the night by the appellant but the deceased never returned rather his dead body was found in her house in the next morning. 6. The learned trial court based his finding of guilt against the appellant on the following circumstances:- (I) The deceased was taken by the appellant in the night at about 8-9 p.m. on 19.11.1987 but he never returned home rather he was found dead in the next morning. (II) The motive for committing murder was that the appellant took objection while the deceased was taking Sarita Devi with him forcibly. 7. Heard the learned counsel appearing for petitioner and the learned' counsel appearing for the State. 8. So far motive, as stated above, is concerned, the prosecution has failed utterly to prove it. It is the case of the prosecution that the appellant extended threat to deceased of dire consequences, she took strong projection of taking Sarita Devi by the appellant forcibly, but Sarita Devi (P.W. 5) did not support this fact in her evidence. On the contrary she has stated in her cross-examination that she had given birth of a child 3 days before and as such she was not supposed to go out for at least 6 days. However, P.W. 3 Mainwa Devi in her evidence has testified that when the deceased raised an objection on the misdeed of the appellant, the appellant extended threat to him but surprisingly the witness did not divulge this fact to the informant rather as per the informant, she came to know about that incident only from the deceased and as such the testimony to that effect is susceptible to doubt. Moreover, when Sarita Devi, so called victim has denied the said fact, the prosecution can certainly be said to have failed in proving the motive. 9. So far other circumstance is concerned, the witnesses namely, P.W. 1 Fulmatia Devi and P.W. 3 Mainwa Devi have testified that the appellant came to their place and took the deceased with him. Moreover, when Sarita Devi, so called victim has denied the said fact, the prosecution can certainly be said to have failed in proving the motive. 9. So far other circumstance is concerned, the witnesses namely, P.W. 1 Fulmatia Devi and P.W. 3 Mainwa Devi have testified that the appellant came to their place and took the deceased with him. Subsequently, the dead body was found in the next morning but this fact of taking of the deceased by the appellant alone, does not prove the culpability of the appellant as it is not the first occasion when the appellant had taken the deceased with him rather as per the evidence of both the witnesses, the deceased used to go oftenly with the appellant and as such in absence of any other circumstance showing guilt of the appellant, it seems quite unusual that the appellant would commit offence, as has been alleged. 10. Moreover, it sounds quite unnatural that the appellant would be taking first the deceased outside of the house and then would bring him back to the house of P.W. 3-Mainwa Devi, who happens to be the Bhabhi of the deceased and would have shot him dead in her house particularly when the family members were awake being busy till late night in the treatment of a child. 11. Thus, the only circumstance' put forth by the prosecution whereby it is said that the appellant took the deceased with him, who subsequently was found murdered, never go to establish the charge that the appellant did commit murder of the deceased. 12. Accordingly, the judgment of conviction dated 25.8.2006 and the order of sentence dated 29.8.2006, passed by learned 1st Addl. Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 556 of 1988 is hereby set aside and the appellant is acquitted of the charge. Consequently, the appellant, who is in custody is, hereby, directed to be set free forthwith, if not wanted in any other case. 13. In the result, this appeal stands allowed.