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2011 DIGILAW 1024 (JHR)

Babudhan Murmu v. State of Jharkhand

2011-11-22

D.N.UPADHYAY

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JUDGMENT D.N. Upadhyay, J. (1) THIS appeal is directed against the Judgment of conviction and order of sentence dated 08.01.2003 and 10.01.2003 respectively, passed by learned Additional Sessions Judge, Fast Track Court No. 1, Pakur in Sessions Case No. 540 of 1990/64 of 2002 corresponding to Litipara (District ? Pakur) P.S. Case No. 04/1989 [G.R. No. 44 of 1989] whereby and whereunder, both the appellants have been held guilty for the offence punishable under Sections 325/34 of the Indian Penal Code and accordingly, sentenced to undergo R.I. for five years and to pay fine of Rs.500/- each and in default of making payment of fine, further imprisonment for six months. (2) THE facts emerging from the records are Manjhi Hansda and Hullue Hansda, the brothers of the informant, had been sleeping in a hut situated outside the house on 1st February, 1989. On the following morning, since they did not return home till 7:00 a.m., the informant got worried and went to the huts and found the duo injured having injuries on their face, near the eye and other parts of the body. Both the injured were brought to the Police Station from where they were shifted to the Hospital for their treatment. On the basis of the report given by Ramcharan Hansda on 2nd February, 1989 at 9:45 hrs., Litipara (District ? Pakur) P.S. Case No. 4/1989 under Sections 324/ 326/ 307 of the Indian Penal Code against the unknown was registered. During investigation, the names of the appellants surfaced and they were chargesheeted to face trial for the offence punishable under Sections 324, 326, 304 of the Indian Penal Code. After commitment, both the appellants pleaded not guilty and charge under Sections 307/34 of the Indian Penal Code against them was framed. The prosecution, in order to bring home the charge, examined altogether seven witnesses and they were Parmeshwar Hansda (P.W.-1), Kisto Marandi (P.W.-2), Ram Charan Hansda (P.W.-3 ? Informant), Manjhi Hansda (P.W.-4 ? Injured), Hullue Hansda (P.W.-5 ? Injured), Raj Kumar Saha (P.W.-6) and the Doctor Barnwas Murmu (P.W.-7). (3) P.W.-1 Parmeshwar Marandi happens to be the hearsay witness and after knowing about the incident, he had visited the place of occurrence, took the injured to the Police Station and accompanies them up to the Hospital. He has further stated that the injured had disclosed the names of the assailants as Chundey Murmu and Babudhan Murmu . (3) P.W.-1 Parmeshwar Marandi happens to be the hearsay witness and after knowing about the incident, he had visited the place of occurrence, took the injured to the Police Station and accompanies them up to the Hospital. He has further stated that the injured had disclosed the names of the assailants as Chundey Murmu and Babudhan Murmu . Kisto Marandi (P.W.-2) and Raj Kumar Saha (P.W.-6) are also the hearsay witnesses and they had supported the incident which they heard. Ram Charan Hansda (P.W.-3 ? Informant), who is also the brother of the injured, has supported the prosecution case as made out by him in the First Information Report. He has stated that his injured brothers disclosed that they were assaulted by Babudhan Murmu and Chundey Murmu and further described the injuries which he had noticed on the person of the injured. Manjhi Hansda (P.W.-4 ? Injured), has stated that he along with his brother Hullue Hansda (P.W.-5 ? Injured) were sleeping in the hut. At midnight, Babudhan Murmu flashing torch light, reached to the place whereafter, Chundey Murmu assaulted him by means of Tangi causing injury on his mouth, ear and chin. Babudhan Murmu had caused injury to him by means of knife. After having injuries, he became unconscious and he found him under treatment in Hiranpura Hospital where he could get sense. Hullue Hansda (P.W.-5) another injured has also supported the incident and disclosed that he was caught by Babudhan Murmu and Kisto Hansda and assaulted by Chundey Murmu. After having injuries, he too became unconscious. When he got sense, he found himself under treatment in Hiranpura Hospital. Doctor Barnwas Murmu (P.W.-7) had examined both the injured and he has proved Carbon Copies of the injuries report which have been marked Ext.-2 and 2/1 with objection. The Doctor has described the injuries which he had noticed on the person of the injured but he has opined that the injuries were caused by a blunt weapon. (4) THE learned counsel appearing for the appellants has assailed the impugned Judgment on various grounds and submitted that the evidence of witnesses examined is inconsistence, contradictory and untrustworthy. No reliance can be placed on such contradictory evidence and the learned Additional Sessions Judge has wrongly appreciated the same. (4) THE learned counsel appearing for the appellants has assailed the impugned Judgment on various grounds and submitted that the evidence of witnesses examined is inconsistence, contradictory and untrustworthy. No reliance can be placed on such contradictory evidence and the learned Additional Sessions Judge has wrongly appreciated the same. THE Doctor has stated that the injured were examined by him on 27.02.1989 whereas the incident took place between the intervening night of 1st and 2nd February, 1989 and therefore, the version of the witnesses that the injured were removed to the Hospital on the following morning after the incident, cannot be relied upon. Further more, the injured had disclosed that the injuries to them were caused by means of an axe and a knife but the Doctor did not find sharp cut injuries on their person. THE original injury report were not produced and, therefore, the carbon copy which is evidence of secondary nature, cannot be accepted unless the prosecution proves that the original is lost or destroyed. THE Doctor has not given the time of examination in the injury report. THE next point which the learned counsel has raised is that the FIR was registered against the unknown accused though the informant in his deposition recorded in para-2, has said that on way to the Police Station, his injured brothers had disclosed names of the appellants and if it was so, the FIR should have been registered against the appellants with their names. In support of his contention, learned counsel has relied upon a decision of the Supreme Court in the case of Satguru Singh Vs. State of Punjab [1995 CRI.L.J. 4165] to the effect that failure to disclose the name of the assailant renders the prosecution case doubtful. Learned counsel for the appellant has further relied in a decision of Supreme Court in the case of Thulia Kali Vs. THE State of Tamil Nadu [ AIR 1973 SC 501 ] wherein the Court has held that the informant did not know about the actual assailant of the deceased and on the following day, their suspicion fell on the accused and accordingly, the appellants were involved in the said case, which creates suspicion to the prosecution story. THE injured witnesses PWs-4 and 5 had disclosed that they remained unconscious in the Hospital for about three days. THE injured witnesses PWs-4 and 5 had disclosed that they remained unconscious in the Hospital for about three days. Hullue Hansda (P.W.-5) had admitted the enimical relationship between the accused and their family (Para-6). Contradictions have been taken in the evidence of P.Ws.-3, 4 and 5 but the Investigating Officer has not been examined and the non examination of the Investigating Officer caused prejudice to the appellants. No independent witness has supported the prosecution case and the manner in which the incident took place, cannot be believed and the prosecution has failed to prove the charge beyond all reasonable doubt. Learned Additional Sessions Judge did not consider the occurrence true under Section 307 of the Indian Penal Code and he should have acquitted the appellants on that score alone. THE finding of the learned Additional Sessions Judge is incorrect to the extent of holding the appellants guilty for the offence under Section 325/ 34 of the Indian Penal Code. Learned counsel for the State has supported the Judgment and submitted that the injured are the best witnesses of the occurrence and both of them have supported the incident. It was explained by the informant that the injured brothers were not in a position to speak and that was the reason names of the appellants were given in the FIR. (5) AFTER perusing the evidence of the witnesses available on record, the points raised on behalf of the appellants find support. The Doctor (P.W.-7) has clearly stated in his deposition that he had examined the injured on 27.02.1989 and the Injury Reports were also signed by the Doctor on the very same date. The date and time of examination of the injured is missing. On those injury report, the version of the Doctor creates a serious doubt on the prosecution case as to what was the actual date of incident because the Doctor had further opined the injuries were caused within 6 ? 10 hours. The evidence of the informant (P.W.-3) recorded in para-2 also indicates that the injured had disclosed names of the appellants on the way but the FIR was registered against unknown. The version of P.Ws.-4 and 5 that they could get sense after 2 ? 3 days, does not find support from the record or the medical evidence. 10 hours. The evidence of the informant (P.W.-3) recorded in para-2 also indicates that the injured had disclosed names of the appellants on the way but the FIR was registered against unknown. The version of P.Ws.-4 and 5 that they could get sense after 2 ? 3 days, does not find support from the record or the medical evidence. The enimity prevailing between the informant party and the accused persons are admitted and, therefore, possibility of false implication, in the circumstances, where the FIR was initially registered against the unknown accused, cannot be ruled out. The non examination of the Investigating Officer in case where the contradictions are apparent in the statements of witnesses, has certainly caused prejudice to the appellants. (6) IN view of the discussions made above, I am fully inclined to give benefits of doubt to the appellants. Accordingly, the impugned Judgment of conviction and order of sentence dated 08.01.2003 and 10.01.2003 respectively, passed by Additional Sessions Judge, Fast Track Court No. 1, Pakur in Sessions Case No. 540 of 1990/64 of 2002 is hereby set aside. The appellants, who are on bail, are discharged from the liability of bail bonds. The appeal stands allowed.