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2011 DIGILAW 509 (JHR)

Vishwanath Kongari v. State of Jharkhand

2011-06-15

D.N.UPADHYAY, R.K.MERATHIA

body2011
ORDER By Court : This appeal arises out of judgment and order of conviction and sentence dated 31.3.2001 and 9.4.2001 respectively passed by Sri Pradeep Kumar Singh, Additional Judicial Commissioner, Khunti, in Sessions Trial No. 5 of 1997 (T.R. 15 of 1997) whereby the appellants have been convicted under sections 302/34 of the Indian penal Code and sentenced to undergo imprisonment for life, along with a fine of Rs. 2000/-( rupees two thousand )each and, in default of payment, to undergo further imprisonment of three months. 2. Prosecution case, in short, as emerges from the fard beyan of the informant Pharnu Kongari recorded on 2.6.1996 is that a month prior to the date of the occurrence, Dundru Kongari, the brother of the informant, had fallen ill and he had been treated by the informant and his wife by way of exorcism (jharphuk) but two/three days later, he died and thereupon the nephews of the informant I.e. appellants no. 1 and 2 alleged that the informant and his wife had killed his father by practising witchcraft and that they had threatened that they would not spare them alive. On the very day which was a Saturday, appellants 1 and 2 came at the house of the informant at about 11.00 O' clock in the night and said that there would be a meeting today. The informant objected to the holding of the meeting on that day and asked for convening the meeting on the next day. But inspite of his objection, the meeting was convened on that very day ( Saturday night) and the decision taken in the meeting was recorded on a paper. In the meeting payment of fine of Rs.3000/-, 5 goats and 5 cocks, was imposed on the informant. The fine was to be paid by the informant by coming Monday for which Bodhi Kongari, the son of the informant, asked for some more time. Enraged by such request, appellant no.2, Manu Kongari, ordered to assault him (Bodhi Kongari) on which Dundru Kongari (absconder) and appellant no.3 Lecha Kongari alias Thutha caught the deceased and appellant no.1 Vishwanath Kongari gave tangi blows on Bodhi as a result of which he fell down on the ground and succumbed to the injuries. The occurrence was witnessed by the persons present in the meeting. 3. The occurrence was witnessed by the persons present in the meeting. 3. On the basis of the said fard beyan of the informant, Torpa PS Case No. 22 of 1996 was registered on 2.6.1996. After investigation, charge sheet was submitted against the appellants and Dundru Kongari. It appears that Dundru absconded and the appellants faced the trial and were convicted as aforesaid. 4. Mr. Binod Singh, learned counsel appearing on behalf of the appellants submitted that the conviction of the appellants is based mainly on the evidence of informant Parnnu Kongari (PW1) and Punni Kongari (PW3).There are vital contradictions in their evidence. Moreover, PW3 has projected herself to be but she is not an eye witness. She has also tried to develop the prosecution case in her evidence. Pws 5 to 7 are independent witnesses named in the FIR, who were present in the meeting, but they have not supported the prosecution case and they have turned hostile. Learned counsel further pointed out that the appellant no.1 is in jail since 3.6.1996 and appellants 2 and 3 are in jail since 31.3.2001. 5. Mr. Rajgarhia, learned counsel appearing on behalf of the State supported the impugned judgment. 6. We find force in the submission of the learned counsel for the appellants that the conviction is based mainly on the evidence of Pws 1 and 3. PW3 has, inter alia, stated that the meeting was held in the courtyard of her house in which about 100 -150 persons had assembled. She further said that the persons who were present in the meeting were not having any weapon in their hands, but when the quarrel started, appellant no. 1 brought a tangi from his house, but nobody caught him, and he killed the deceased. She has further deposed that she was not present at the place of the meeting and only male members had attended the meeting. Thus, it becomes doubtful that she had seen the actual occurrence. PW1 (informant) has supported the prosecution case in his evidence. But his evidence is not fully reliable. Investigating officer has not been examined in this case. Independent witnesses and the villagers named in the FIR have turned hostile and they have not corroborated the evidence of PW1. Thus, it becomes doubtful whether the occurrence took place in the manner as alleged by the informant PW1. But his evidence is not fully reliable. Investigating officer has not been examined in this case. Independent witnesses and the villagers named in the FIR have turned hostile and they have not corroborated the evidence of PW1. Thus, it becomes doubtful whether the occurrence took place in the manner as alleged by the informant PW1. 7 It may also be noted here that the parties were not on good terms. The appellants are said to be the nephews of the informant. The appellants were having suspicion that the father of the appellant no.2 Manu died due to witchcraft practised by the informant and his wife. 8 On considering the entire materials available on the record, we are of the view that the appellants deserve benefit of doubt. 9. For the reasons aforesaid, this appeal is allowed and the order of conviction and sentence passed by the trial court in Sessions Trial No. 5 of 1997 (T.R. 15 of 1997) are hereby set aside. The appellants are in Jail. They are directed to be released forthwith, if not wanted in any other case.