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2015 DIGILAW 387 (JHR)

Sheo Dayal Kumhar v. State of Jharkhand

2015-03-19

APARESH KUMAR SINGH, VIRENDER SINGH

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JUDGMENT : Per Virender Singh, C.J. Appellant-Sheo Dayal Kumhar (hereinafter to be referred as 'accused') is stated to be languishing in jail for last 14 years, as such, priority has been given to this case for its final consideration. 2. Deceased in this case is one Birsa Kumhar and the accused is his brother-in-law (real brother of wife of the deceased). Wife of the deceased is the first informant and she approached the police on 10.08.2000, made a statement that on 07.08.2000 at about 7.00 -8.00 PM she was in her house along with husband (deceased) when Muni Devi, wife of the accused, came there and took her husband with her for taking liquor. It is further alleged that Muni Devi, the accused and Shankar Kumhar served liquor to the deceased and then committed his murder by assaulting him with Tangi near the house of PW-Bitu Mahto. She further alleges that the accused threatened her to leave the place, otherwise she would also be killed, consequently she concealed herself in her house. The reason for the present occurrence, as projected by her, is that her daughter Malawati aged 03 years had fallen ill few days prior to the occurrence and they had brought one chicken from the house of the accused for offering it to the God and for this reason, all the three accused killed her husband and threw his dead body besides the railway line. 3. It needs to be mentioned here that Muni Devi and Shankar Kumhar could not be nabbed by the investigating agency, as such, declared absconder and challan was filed against the accused only who was charged for the offence punishable under sections 302/34 IPC for which he now stands convicted and sentenced vide the impugned judgement of learned Sessions Judge, Gumla dated 29.05.2003. 4. Prosecution in support of its case, has produced as many as six witnesses, out of which, except PW-Bitu Mahto, no other witness including the wife of the deceased has supported the case of the prosecution. 5. 4. Prosecution in support of its case, has produced as many as six witnesses, out of which, except PW-Bitu Mahto, no other witness including the wife of the deceased has supported the case of the prosecution. 5. Although, PW-Bitu Mahto claims himself to be an eyewitness to the occurrence, but his evidence appears to be most untrustworthy for the reason that he is not shown to be an eyewitness to the occurrence in the initial statement of the wife of the deceased who ultimately did not support the case of the prosecution, may be for the reason that the accused is her real brother. No doubt, in her initial statement, name of PW-Bitu Mahto figures as the occurrence is shown to be near his house, but that fact by itself would not be a ground to believe him as a true witness to the occurrence. Another fact which creates doubt in our mind about his presence at the time of occurrence is that when he stepped into the witness box, he stated in his cross-examination that he had seen the accused near the place of occurrence but did not specifically attribute any injury to any of the accused. We do find that in his examination-in-chief, he has made an attempt to give photographic version of the occurrence, but in cross-examination, he projects himself to be an untrustworthy witness. 6. Keeping in view the totality of the facts and circumstances of the case, especially when the wife of the deceased who is the first informant and allegedly seen the accused killing her husband, has not supported the case of the prosecution, it would be very difficult for the Court to give any credence to the statement of PW-Bitu Mahto who happens to be the solitary witness to the occurrence. We do not want to enter into other infirmities crept in his statement for the reason that we dub him as untrue witness to the occurrence on account of aforesaid vital flaw in the case of the prosecution. 7. Perhaps nothing remains unnoticed by us for the purposes of rescanning the prosecution case. 8. After churning the entire evidence, the net result now surfaces is that the prosecution has not been able to prove its case beyond shadow of reasonable doubt against the accused, as such, he deserves acquittal for the charges for which he faced trial. Ordered accordingly. 9. 8. After churning the entire evidence, the net result now surfaces is that the prosecution has not been able to prove its case beyond shadow of reasonable doubt against the accused, as such, he deserves acquittal for the charges for which he faced trial. Ordered accordingly. 9. The net result is that the appeal on hand stands allowed. 10. Appellant is stated to be in custody for the last 14 years. He shall now be released forthwith in this case, if not required in any other case. Concerned Jail authorities be intimated accordingly. Learned Trial Court shall also be informed of the outcome of the instant appeal. Lower Court Record in original shall be remitted back to the court concerned.