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2016 DIGILAW 1250 (JHR)

Boyla Soren, s/o Birsingh Soren v. State of Bihar

2016-08-11

SHREE CHANDRASHEKHAR, VIRENDER SINGH

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JUDGMENT : Virender Singh, J. In all, five accused, namely, appellant nos.-1.Boyla Soren, s/o Birsingh Soren, 2.Ravan Soren, S/o Thakur Soren, 3.Dhona Murmu, S/o Ram Murmu, 4.Thakur Soren, S/o Birsingh Soren and 5.Sahib Soren, S/o Boyla Soren faced the trial for the offence punishable under Sections 147, 148, 149, 326, 307 and 302 I.P.C. and were convicted for the charges under Sections 302/149/147 and 148 I.P.C, vide impugned judgment dated 28.05.1992 of learned Additional Sessions Judge, Pakur. Aggrieved thereof, they preferred the instant appeal in the High Court of Patna, which was subsequently transferred to this Court on its bifurcation. All the appellants were granted bail vide order dated 15.06.1992. 2. When the instant appeal was taken up today for its final consideration, undoubtedly after 24 years, the learned State counsel, at the very outset stated that out of five accused, who have suffered conviction, only appellant no.3-Dhona Murmu, S/o Ram Murmu, is still alive whereas, the remaining four appellants namely, Boyla Soren, s/o Birsingh Soren, Ravan Soren, S/o Thakur Soren, Thakur Soren, S/o Birsingh Soren and Sahib Soren, S/o Boyla Soren have already died during the pendency of the instant appeal. The Death Certificates are also placed on record. The appeal on hand thus, stands abated qua appellant nos.1,2,4 and 5, namely Boyla Soren, s/o Birsingh Soren, Ravan Soren, S/o Thakur Soren, Thakur Soren, S/o Birsingh Soren and Sahib Soren, S/o Boyla Soren, respectively and survives qua appellant no.3-namely, Dhona Murmu, S/o Ram Murmu. 3. Mr. K. K. Ojha, the learned counsel appears for the appellant namely-Dhona Murmu and Mr. Sanjay Kumar Srivastava, APP, appears for the State. 4. We have gone through the impugned judgment and the entire trial court records once again. The first informant in this case is one Dullar Murmu, wife of the deceased Rameshwar Marandi. The occurrence is of 29.01.1976 at about 08.00 a.m. in the village of the deceased. All the accused also hail from the same Village. The F.I.R. is lodged on 31.01.1976 thus, there appears to be two days' delay in lodging the F.I.R. In her statement, the informant alleged that the appellant-Dhona Murmu, who was armed with Gupti assaulted her husband whereas, the remaining four accused, armed with Lathi also assaulted the deceased. The deceased was examined by Dr. The F.I.R. is lodged on 31.01.1976 thus, there appears to be two days' delay in lodging the F.I.R. In her statement, the informant alleged that the appellant-Dhona Murmu, who was armed with Gupti assaulted her husband whereas, the remaining four accused, armed with Lathi also assaulted the deceased. The deceased was examined by Dr. Navin Chandra Mishra, P.W.-8 on 31.01.1976 at 10.30 a.m., who noticed the following injuries on the person of the deceased: (i) Lacerated wound over left ear pinna 1”x1/2”x1” (ii) One lacerated wound 1/4”x1/4”x skin deep below left ear. (iii) One lacerated wound 3.2”x1/2”x skin deep on the left side of scalp. (iv) Bruize 2/ 1/2” x 1, 1/2” over right side of scalp (v) Bleeding from nose and ear. 5. The death is also of the same day i.e. 31.01.1976. Admittedly, the doctor of postmortem has not stepped into the witness box therefore, the postmortem report goes unproved. Neither the investigating officer was examined nor the blood-stained clothes were produced or sent for forensic examination. P.W.-6, though stated that the police took her statement before she took her husband to hospital, however, F.I.R was not lodged on that basis. 6. The another fact which needs to be noticed here is that except, P.W.-2 and P.W.-6 all the witnesses were either declared hostile or were not eye-witnesses. The learned trial court has also observed that the evidence of other prosecution witnesses is not of much help to the prosecution. What we find from the medical evidence available on record is that the injury attributed to the present appellant (Dhona Murmu) is conspicuously missing in the MLR Report. Gupti cannot cause lacerated wound. The doctor has opined that the lacerated wound on the person of the deceased is by sharp edged weapon; this opinion on the face of it, is not correct. 7. The finding returned by the learned trial court is that the medical evidence supports the occular evidence and there is no contradiction between the two. On this aspect, the learned trial court has erred. The injuries, otherwise, appearing on the person of the deceased, could be possible by blunt weapon, like Lathi. The persons, who had allegedly caused Lathi injury, faced trial and convicted, are since dead. 8. On this aspect, the learned trial court has erred. The injuries, otherwise, appearing on the person of the deceased, could be possible by blunt weapon, like Lathi. The persons, who had allegedly caused Lathi injury, faced trial and convicted, are since dead. 8. Be that as it may, if we appreciate the prosecution case in its right perspective, it can be comfortably said that the case of the prosecution vis-a-vis the present appellant (Dhona Murmu) is not free from doubts. Finding the aforesaid fundamental flaw in the case of the prosecution, in the flashback of the fact that the remaining accused are no more in this world, we do not feel the necessity of entering into the detail vis-a-vis the part attributed to them, and hold that the prosecution has not been able to prove this case beyond any shadow of reasonable doubt against the surviving appellant. The impugned judgment convicting the appellant, for the aforesaid charges with the aid of Section 149 thus, deserves to be set aside. The net result is that the appeal on hand stands allowed. 9. The appellant no.3, namely, Dhona Murmu is acquitted of the charges for which he was convicted vide impugned judgment dated 28.05.1992 of learned Additional Sessions Judge, Pakur. He is also discharged of the bail bonds furnished by him during the pendency of the instant appeal in terms of the order dated 15.06.1992. Appeal allowed.