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2011 DIGILAW 280 (JHR)

Barjo Hembrom v. State of Jharkhand

2011-03-30

R.R.PRASAD, SUSHIL HARKAULI

body2011
Order By Court.-By the impugned judgment and order, the appellant, on being found guilty for committing murder of one Chipri Barjo (wife of the informant) after kidnapping her, was convicted under Section 302/34 and also under Section 364/34 of the Indian Penal Code and was sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and further to undergo rigorous imprisonment for six years under Section 364/34 of the Indian Penal Code. 2. The case of the prosecution is that on 25.3.1990 while the informant was sleeping in his house in the night alongwith his wife Chipri Barjo (deceased and children, two unknown persons having sword, tangi and torch with them entered into the house and took away his wife with them. Thereupon, Sukra Barjo (informant) followed them, but he was assaulted with tangi, as a result of which, he fell down. The informant due to darkness could not identify the miscreants. In the morning, when he narrated about the occurrence to his brother Daso Barjo and Bahadur Kondenkel, they went out in search of the wife of the informant. When they came back, Daso Barjo informed to the informant that in course of her search, when he came to the house of Bistu Kondenkel, he disclosed him that in the previous night while he had been sleeping in his house, two persons, namely, Kaira Aida and Barjo Hembrom (appellant) having sword, tangi and torch with them had come to his house and asked him to accompany them to a place to dance with them. 3. Further case of the prosecution as has emerged out from the evidence of P.W. 2 is that on 28.3.1990, when the dead body of the deceased Chipri Barjo was recovered, the informant, Sukra Barjo (P.W. 5) at about 9.30 A.M. came to the Kumardungi Police Station' where his Fardbeyan (Ext. 4) was recorded. On recovery of the dead body, Investigating Officer on holding inquest on the dead body was prepared an inquest report and the dead body was sent for post mortem' examination which was conducted by Dr. R.P. Singh on 29.3.1990 whereby the Doctor, who was never examined by the prosecution, found the cause of death due to shock and haemorrhage on account of stab wound inflicted over mid abdomen. The Investigation Officer was also not examined in this case by the prosecution. 4. R.P. Singh on 29.3.1990 whereby the Doctor, who was never examined by the prosecution, found the cause of death due to shock and haemorrhage on account of stab wound inflicted over mid abdomen. The Investigation Officer was also not examined in this case by the prosecution. 4. After completion of investigation, the Investigating Officer submitted charge sheet against this appellant as well as Kaira Aida (since died). The appellant was put on trial wherein the prosecution examined the informant as P.W. 5, who testified that it was this appellant and one Kaira Aida, who had entered into the house in the night of the occurrence and took away his wife whose dead body was recovered after four days. P.W. 2, Dayaram Munda and P.W. 3, Rautu Pingua did testify that the informant Sukra Barjo informed them that in the last night the appellant and the other accused had taken away his wife whose dead body was recovered after some days. P.W. 6 Bistu Kondenkel did testify that at about 12 O'clock in the night on 25.3.1990 (Sunday), the appellant and the other accused having sword, tangi and torch with them came to his house and asked to accompany them to village Kharkhori to see dance. The trial Court on putting reliance on the testimony of the aforesaid witnesses did find the appellant guilty and as such, recorded the order of conviction and sentence. 5. Mr. R.C. Khatri, learned counsel appearing for the appellant submits that the informant had never identified the miscreants who had taken away the wife of the informant with them. Still he raised suspicion against this appellant and the other accused for the reason that P.W. 6, Bistu Kondenkel, had disclosed the informant that two persons had come to his house armed with Sword, Tangi and Torch and asked him to accompany them to come to other village and only on that basis, the appellant has been convicted and sentenced by the impugned judgment and order which is fit to be set aside. 6. 6. Having heard learned counsel appearing for the appellant, we do find that the informant Sukra Barjo (P.W. 5) in his evidence did testify that while he was sleeping in his house alongwith his wife and children, this appellant Barjo Hembrom and other accused Kaira Aida came and assaulted him with tangi, as a result of which he fell unconscious and then they took away his wife whose dead body was recovered after four days. Aforesaid evidence never inspire confidence to be believed in view of the statement made in the Fardbeyan wherein it has been stated quite categorically by the informant that he could not identify the miscreants who took away his wife. The informant, as per his statement made in the F.I.R and also in his evidence had also been assaulted but he never informed to the police station about the occurrence nor seems to have informed anybody about the name of the miscreants in the next morning of the occurrence. It is only, as per the evidence of P.W. 2, when dead body was recovered, the Fardbeyan was given raising suspicion against this appellant on the basis of disclosure made by the P.W. 6 that in the night of occurrence, this appellant, Barjo Hembrom and other accused, Kaira Aida had come to his house who were having sword, tangi and torch with them. In that background, testimony of not only the informant is unworthy of credence but also of P.W. 2 and P.W. 3 who have testified that the informant told them that this appellant Barjo Hembrom and other accused, Kaira Aida took away his wife. When the informant himself could not identify the miscreants, who had taken the wife of the informant how he can disclose the name of this appellant and other accused to P.W. 2 and P.W. 3. Therefore, their evidences are not worth reliable. The trial Court without appreciating the important aspect of the matter, as stated above, recorded the order of conviction and sentence which is quite illegal and hence, it is set aside. Consequently, the appellant is acquitted of all the charges levelled against him and is directed to be released forthwith if not wanted in any other case. 7. In the result, this appeal is allowed.