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2014 DIGILAW 606 (JHR)

Tuila Tudu @ Tuyalo Tudu v. State of Jharkhand

2014-05-07

AMITAV K.GUPTA, D.N.PATEL

body2014
JUDGMENT Per Amitav K. Gupta, J. - The appeal has been taken up for final hearing at the instance of learned counsel for the appellant and learned AP.P. The learned counsel for the appellant and learned AP.P. have read out the deposition of the witnesses and evidence on record consequently, on the submissions and insistence of the learned counsels the criminal appeal is hereby has been heard finally for disposal. 2. The instant appeal is directed against the judgment of conviction and order of sentence dated 17.10.2005 and 18.10.2005 respectively, passed by the Additional Sessions Judge, Fast Track Court (F.T.C), Sahibganj in Sessions Trial No. 484 of 1993, whereby and whereunder the appellant was convicted for the offence under Section 302 read with Sections 149 and 148 of the Indian Penal Code (for short "IPC") and sentenced to undergo rigorous imprisonment for life under Sections 302/149 of IPC and rigorous imprisonment for one year for the offence under Section 148, IPC and both the sentences are to run concurrently. 3. The case of the prosecution is based upon fardbeyan of Girdhey Soren, PW 3 (wife of the deceased). It is stated that on 11.8.1991 at 10.00 a.m. her husband, Hopna Tudu (the deceased) was returning after grazing and washing the she-buffalos. That when he reached near the paddy field of Dhena Murmu, at that time her daughter Dhani Tudu (PW 2) was taking the she-goats for grazing who saw some persons were assaulting Hopna Tudu, whereupon PW 2 came and informed PW 3 who rushed to the place of occurrence. PW 3 saw accused Chhotu Tudu armed with Reta, Tulia Tudu armed with tangi, Birang Tudu armed with dabiya and wives of Chhotu Tudu, Tulia Tudu and mother of Birang Tudu assaulting her husband, who fell down in the paddy field of Dhena Murmu. PW 3 found bleeding injuries on her husband's body with injury below the chin, swelling on both side of the chest, swelling on the cheek and injury on the back of his head. It is stated that on her shouts and alarm witnesses namely, Jagrey Tudu, Sidho. Tudu, Mandal Tudu, Salakhu Tudu and Dhana Tudu came at the place of occurrence. It is alleged by PW 3 that on account of outstanding land dispute and enmity the accused persons had assaulted and killed her husband. 4. It is stated that on her shouts and alarm witnesses namely, Jagrey Tudu, Sidho. Tudu, Mandal Tudu, Salakhu Tudu and Dhana Tudu came at the place of occurrence. It is alleged by PW 3 that on account of outstanding land dispute and enmity the accused persons had assaulted and killed her husband. 4. On the basis of the said fardbeyan, Borio P.S. Case 178/1991 wad drawn and FIR registered under Sections 147, 148, 149, 324 and 302, IPC. After completion of investigation, the police laid charge-sheet against eight accused persons accordingly cognizance was taken and the case was committed to the Court of Sessions. The case was transferred to the Court of Additional Sessions Judge, FTC for trial and disposal and all the eight accused persons were put on trial. Charges were framed under Sections 302, 149 and 148 of the IPC to which they pleaded not guilty. It transpires from the record and judgment that in course of trial six accused persons absconded and their case was split up vide order dated 12.4.2005. The trial proceeded only against the appellant Tulia Tudu and co-accused Ramdhani Thakur. 5. In course of trial prosecution examined four witnesses namely, PW 1, Shashi Kumar Shashi, Sub-Inspector, who has proved the formal FIR (Exbt.-1) and fardbeyan (Exbt. 2) stating that the same was in the handwriting and signature of Sri N.K. Jha, the then Sub-Inspector of Borio Police Station. PW 2, Dhani Tudu, is the daughter of the informant and deceased Hopna Tudu. PW 3, Girdhey Soren, is the informant and wife of deceased. PW 4, Brij Nandan Prasad has identified the signature (Exht. 3) of Dr. S.P. Singh on the post-mortem report. On closure of evidence of prosecution, the statement of the accused was recorded under Section 313 of Cr PC and the defence is of complete denial. On the basis of the evidence and material on record the trial Court acquitted co-accused Ramdhani Thakur on the ground that prosecution had not been able to establish the charges against him however it held that charges were proved to be established against appellant Tuila Tudu accordingly the appellant was convicted by the impugned judgment. 6. On the basis of the evidence and material on record the trial Court acquitted co-accused Ramdhani Thakur on the ground that prosecution had not been able to establish the charges against him however it held that charges were proved to be established against appellant Tuila Tudu accordingly the appellant was convicted by the impugned judgment. 6. Learned counsel for appellant has contended that the Investigating Officer has not been examined and the attention of PW 2 has been drawn by prosecution regarding omission/contradictions with respect to her statement under Section 161 Cr PC which points to the fact that the prosecution itself has not believed the testimony of PW 2; that PW 3, mother of PW 2 has contradicted the statement of PW 2. The doctor has not been examined to prove the injuries as mentioned in postmortem report to corroborate the injuries found on the deceased as deposed by PWs 2 and 3; that fardbeyan has not been proved and there is no material evidence on record to bring home the charges against the appellant; that non-examination of I.O. has prejudiced the defence and the learned trial Court had failed to appreciate the material contradictions in the deposition of PWs 2 and 3 who are highly interested and related witnesses; that the impugned judgment is against the weight of evidence on record and is fit to be set aside. 7. On the other hand learned A.P.P. has contended that though the doctor has not been examined but the post-mortem report proves that deceased sustained injuries which was authored by the appellant along with other accused and the trial Court has discussed the findings of the post-mortem report; that PW 2 has stated that this appellant and other accused had assaulted the deceased with sharp cutting weapon which has been supported by the informant; that the trial Court has discussed and after appreciating the evidence on record has lightly convicted the appellant, thus, the judgment requires no interference and the appeal should be dismissed. 8. Having heard the submissions of the counsels and on perusal of the record it is evident that the prosecution case hinges on the testimony and evidence of PWs 2 and 3, the daughter and wife of the deceased Hopna Tudu. 8. Having heard the submissions of the counsels and on perusal of the record it is evident that the prosecution case hinges on the testimony and evidence of PWs 2 and 3, the daughter and wife of the deceased Hopna Tudu. (i) PW 3 in her fardbeyan, has narrated that PW 2 had come home and told her that some persons were assaulting Hopna Tudu (the deceased) and she rushed out whereafter she had seen that the accused persons including the appellant assaulting her husband due to which he sustained injuries and fell down But, in her deposition PW 3 has stated that PW 2 had disclosed to her the names of the assailants. PW 3 in examination-in-chief has not named this appellant, Tuila Tudu as one of the assailants. PW 3 has deposed that when she reached the place of occurrence she saw her husband lying dead and the accused persons were fleeing away. In cross-examination she stated that the appellant was armed with ‘tangi’ (axe) but as noticed above she has not disclosed the name of the appellant in her examination-in-chief. Her attention has been drawn to the omissions in her statement under Section 161 Cr PC. PW 2 has deposed that she had seen this appellant along with other co-accused assaulting her father. She stated that this appellant was armed with 'Fala' (used for cutting earth/mud) whereas PW 3 in cross-examination stated that the appellant was armed with tangi (axe). PW 2 deposed that she had gone to the place of occurrence and then came home and returned with a cot. That she made her father lie on cot and she told no one in the house subsequently, she stated that she came home and told (PW 3) her mother that her father had been killed, upon which PW 3 had accompanied her and they had gone with the cot. The Public Prosecutor has drawn attention to the omissions in the statement made by PW 2 under Section 161 of the Cr PC. In other words the prosecution has doubted the testimony of this witness. In cross-examination, PW 2 stated that she cannot say which accused assaulted on which part of the body; that all the accused were armed with sharp cutting weapons and they assaulted the deceased with the sharp-edge side of the weapons. In other words the prosecution has doubted the testimony of this witness. In cross-examination, PW 2 stated that she cannot say which accused assaulted on which part of the body; that all the accused were armed with sharp cutting weapons and they assaulted the deceased with the sharp-edge side of the weapons. In cross-examination in paras 5 to 9 attention has also been drawn to the omissions and contradiction pointed out with respect to her statement under Section 161, Cr PC. (ii) It is relevant to revert to the deposition of PW 3 who has stated that PW 2 came and told her that her husband had been assaulted and she had gone with PW 2 and seen her husband fallen on the ground; that PW 2 had told her the name of the assailants but as discussed above she has not named this appellant as the assailant thus, PW 3 has contradicted the testimony of PW 2. (iii) The nature of weapon used for assaulting the deceased could have been established if the doctor had been examined as his opinion and findings would have elucidated the cause of death and the nature of the weapon used for causing the injury. On account of non-examination of the doctor the post-mortem report has not been proved but in the impugned judgment the trial , Court has relied on the findings of post-mortem report and held that the injury on the body of deceased were homicidal and time elapsed since death was 46 to 48 hours. The learned A.P.P. has also contended that the deceased sustained sharp cut injury as is evident from the post-mortem report and PW 2 has stated that the appellant was armed with 'Fala' which is a sharp cutting weapon and this corroborates the injury found on the dead body. (iv) The argument of the learned A.P.P. is rather misplaced since it is apparent that the doctor has not been examined to prove the findings of the injuries on the deceased or the nature of weapon used to cause the injury or the cause of death. In fact PW 4 is a formal witness who has merely proved the signature of the doctor on the post-mortem report. In fact PW 4 is a formal witness who has merely proved the signature of the doctor on the post-mortem report. The trial Court committed error of law by not appreciating the fact that the post-mortem report was not proved in accordance to the provisions of law under the Evidence Act, 1872, and has given a finding on the basis of the post-mortem report. It was the duty of the prosecution to examine the doctor who conducted the post-mortem over the dead body of the deceased to corroborate the ocular testimony of the witnesses in order to prove the prosecution case and the trial Court should also have been vigilant on this aspect. In this connection it is necessary to refer to the decision in State of Jharkhand & Ors. v. Sanjay Mandal, reported in 2013 JLJR 157 (paras 6, 7 and 11) wherein specific guidelines have been laid down regarding the duty of I.O., the prosecutor and the trial Court in the administration of criminal justice. The trial Court and the prosecution should have endeavored to examine the Doctor and if he was not available due to his demise or any other extenuating and unavoidable circumstances, then a Doctor who had worked with the Doctor or was acquainted with the writing of the Doctor could have been examined to bring the contents and findings of the post-mortem report on record in accordance to the provisions of law. (v) At this stage no cogent or convincing argument has been advanced by the learned A.P.P. to convince this Court that the post-mortem report has been proved in accordance with law and is admissible as evidence to corroborate the testimony of PWs 2 and 3. However, even if for arguments sake, if indulgence is given to the arguments advanced by the A.P.P that the trial Court has given a finding on the basis of the post-mortem report that the death of the deceased was homicidal and the injuries found on the deceased is corroborated by the eye-witnesses even then the contention of learned A.P.P. is not substantiated because on perusal of the post-mortem it transpires that the deceased sustained only one incised wound caused by sharp cutting weapon and multiple lacerated injuries were found which were caused by hard and blunt substance. The findings in the post-mortem report does not corroborate the ocular testimony. The findings in the post-mortem report does not corroborate the ocular testimony. PW 3 has stated that appellant was armed with tangi (axe) and other accused were armed with Reta and Dabiya. PW 2 has stated that the appellant was armed with 'fala' (used for cutting mud) and other accused were armed with khanta, tangi, basuli (used for cutting wood), Dawa etc. meaning thereby that all the accused were armed with sharp-cutting weapons and as discussed above, in cross-examination PW 2 stated that all the assailants assaulted with the sharpedged side of the weapon. If for a moment PW 2's deposition is believed to be true then the deceased should have sustained multiple incised would/injuries but the post-mortem report mentions only one incised wound and multiple lacerated wounds caused by hard and blunt substance. PWs 2 and 3 have not stated that the appellant and other accused were armed with hard and blunt weapon and PW 2 has specifically stated that the assault was made with the sharp edge side of the weapons by all the accused. 9. To reiterate in the fardbeyan PW 3 has claimed herself to be the eye-witness and stated that the appellant was armed with tangi but PW 2 has deposed that the appellant was armed with ‘fala’ (used for cutting earth/mud). These material contradiction creates a doubt regarding presence of PWs 2 and 3 as eye-witnesses' to the occurrence. On further analysis of evidence it is evident that PW 2 stated that she had reached near her father when he fell down but, subsequently, she stated that she reached near the bari which is two hundred yards West to her house and she saw the occurrence from a distance of 50-60 yards. It is evident from her deposition wherein she has stated that due to the assault her father died and she went near her father then she came home and brought the cot whereas in para-4 of cross-examination she contradicted herself by stating that when she saw the assault she ran home and when she came with her mother (PW 3) the accused had fled away. If PW 2's statement is considered then admittedly PW 3 never witnessesed the assault as narrated by her in the fardbeyan because as per PW 2's deposition accused had fled away when PW 2 reached the place of occurrence with PW 3. If PW 2's statement is considered then admittedly PW 3 never witnessesed the assault as narrated by her in the fardbeyan because as per PW 2's deposition accused had fled away when PW 2 reached the place of occurrence with PW 3. The deposition of PW 2 when viewed in the background of narration of fardbeyan of PW 3 reveals that PW 2 had not told her the names of the assailants, PW 3's fardbeyan discloses that PW 2 came and told her that some persons were assaulting Hopna Tudu upon which PW 3 rushed to the place of occurrence and saw the appellant and other accused variously armed assaulting her husband due to which her husband fell down. PW 2 has deposed that she had come home and informed PW 3 and they had taken a cot to the place of occurrence and made Hopna Tudu lie in the cot but PW 3 has not stated that she along with PW 2 had come with a cot and made Hopna Tudu lie on the cot rather PW 3's narration in fardbeyan is that on her alarm villagers/witnesses namely, Jagrey Tudu, Sidho Tudu, Mandal Tudu, Salakhu Tudu and Dhana Tudu came there but this fact has not been deposed by PW 2 regarding arrival of independent witnesses at the place of occurrence. In fact PW 2 deposed that she did not tell any member of her house. In cross-examination PW 3 has stated that the occurrence had taken place 200 steps South of her house whereas as per PW 2's deposition the occurrence took place 50-60 yards West from the bari of the house. PW 2 in cross-examination stated that they did not stay for long at the place of occurrence but they went to the police station which is also stated by PW 3. If PWs 2 and 3 deposition is considered it would mean that they had gone immediately to the police. It is pertinent to note that the occurrence took place at 10 a.m. on 11.8.1991 whereas the fardbeyan was recorded on the next day on 12.8.1991 and there is no plausible explanation for the delay in lodging the FIR. 10. It is settled principle of law as laid down in a catena of cases that prosecution case cannot be disbelieved only because the witnesses are related or interested provided their evidence is consistent, trustworthy and reliable. 10. It is settled principle of law as laid down in a catena of cases that prosecution case cannot be disbelieved only because the witnesses are related or interested provided their evidence is consistent, trustworthy and reliable. The ratio has also been laid down in the decision in Shree Ram v. State of Rajasthan, (2014) 3 SCC 689 (para-10). In the said decision it has been held that evidence of related and interested witness is not always suspect but it has to be scrutinized with caution and can be accepted if it is found reliable. It is also settled law that it is not the plurality of witnesses but the quality and weight of evidence which is to be appreciated and conviction can be based on the evidence of solitary witness if the evidence inspires confidence and is found to be trustworthy. 11. In view of the settled proposition of law, on scrutiny and analysis of evidence of PWs 2 and 3, as discussed hereinabove, we find that the evidence of PWs 2 and 3 are not consistent rather they are riddled with major contradiction regarding the manner of occurrence, the weapon used by the appellant, the place of occurrence and the credibility of PWs 2 and 3 having witnessed the crime or their presence at the place of occurrence. The inherent contradictions creates a doubt regarding credibility of the prosecution case. It is necessary to reiterate that the prosecution itself has doubted the statement of PW 2 by drawing her attention to omissions in her statement under Section 161. Cr PC. It is admitted fact in the fardbeyan that there is outstanding disputed and litigation between the informant and appellant. Informant has stated that on her alarm named witnesses had come to the place of occurrence as per her fardbeyan but the prosecution has not examined the named witnesses. The non-examination of the Investigating Officer is vital for the prosecution case as the attention of PWs 2 and 3 has been drawn with respect to the omission in their statements under Section 161 Cr PC. Thus, the non-examination of I.O. has caused prejudice to the defence. 12. The non-examination of the Investigating Officer is vital for the prosecution case as the attention of PWs 2 and 3 has been drawn with respect to the omission in their statements under Section 161 Cr PC. Thus, the non-examination of I.O. has caused prejudice to the defence. 12. Thus, in view of the emergent broad feature and the evidence on record, a reasonable doubt has been cast on the prosecution story and no cogent evidence has been brought on record to prove the charges under Sections 302, 149 and 148 of the IPC against the appellant beyond all reasonable shadow of doubt. In the given facts and circumstances the benefit of reasonable doubt accrues to the appellant. 13. Thus, in view of discussions made above and the evidence on record the impugned judgment of conviction dated 17th October, 2005 and order of sentence dated 18th October, 2005 passed by Sri Kamalesh Mishra, Additional Sessions Judge, Fast Track Court, Sahibganj in Sessions Case No. 484 of 1993, T.R. No. 12/2005 is hereby set aside. The appellant namely, Tuila Tudu is acquitted of the charges and he is directed to be released forthwith, if not wanted in any other case. In the result the appeal stands allowed. Appeal allowed.