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2016 DIGILAW 148 (JHR)

Babaji v. State of Jharkhand

2016-01-20

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
ORDER : Heard the parties. 2. This criminal appeal has been directed against the judgment of conviction and order of Sentence dated 28.04.2004 and 30.04.2004 respectively, passed by the Additional Sessions Judge, F.T.C. No. IV, Dhanbad in Sessions Trial No. 111 of 1999 corresponding to Dhanbad Sadar (Govindpur) P.S. Case No. 260/1993 [G.R. No. 3731/1993] whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life and also to pay fine of Rs. 1,000/- in default of making payment of fine further imprisonment for three months. 3. The prosecution case, as it appear from fardbeyan of Draupadi Devi recorded on 08.10.1993 at 4:30 hrs. in brief is that the informant with her husband Gopal Chandra Mahato was sleeping in a room. At about 1:00 a.m. the informant noticed some noise and woke up. In the light she had seen appellant Babaji inflicting blows by means of sharp cutting weapon (busula mainly used by carpenters) to her husband Gopal Chandra Mahato. The informant tried to rescue but could not succeed. The appellant, after causing injury, sealed over and fled away. On hulla, mother-in-law and other relatives assembled at the place and some of them had also seen the appellant fleeing from the place of occurrence. The injured Gopal Chandra Mahato was removed to hospital but could not survive. Initially on the basis of fardbayan of Draupadi Devi, Dhanbad Sadar (Govindpur) P.S. Case No. 260/1993 corresponding to G.R.No. 3731/1993 under Sections 452, 307/34 of the Indian Penal Code was registered but after death of Gopal Chandra Mahato, Section 302 of the Indian Penal Code vide order dated 10.10.1993 was added. 4. The police after due investigation submitted charge-sheet. Accordingly, cognisance was taken and case was committed to the Court of Sessions and registered as ST. No. 111/1999. Charges under Section 452/302 of the Indian Penal Code against the appellant were framed to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges examined altogether eleven witnesses whereas the appellant also examined one witness in his defence. The Learned Additional Sessions Judge, at the conclusion of trial placing reliance on the evidence and documents available on record held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him as indicated above. The Learned Additional Sessions Judge, at the conclusion of trial placing reliance on the evidence and documents available on record held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him as indicated above. No finding with regard to offence punishable under Section 452 of the Indian Penal Code is appearing in the impugned judgment. 5. The appellant has challenged the impugned judgment and sentence mainly on the ground that fardbayan and seizure list has not been proved in accordance with law. In absence of inquest report and non-examination of Investigating Officer, the place of occurrence has not been proved. P.W. 11 (Tara Pado Kumar) happens to be Advocate Clerk and the prosecution has taken help from him to prove seizure list because P.W. 1 (Hari Prasad Mahato, chowkidar) who is also witness to the seizure list, has not supported the prosecution case. The Doctor who attended first Gopal Chandra Mahato (deceased) in Patliputra Medical College Hospital, has not been examined nor any injury report is available on record. No independent witness has come forward to support the prosecution case as made out by the informant in her fardbayan. There are contradictions in the statement of family members who are P.W. 2 (Adu Mahatian-mother of the deceased), P.W. 4 (Gangadhar), P.W. 6 (Yamuna Devi-gotni) and P.W. 7 (Govinda Mahato). According to P.W. 2 (Para-1), she reached place of occurrence after hearing alarm raised by Draupadi. She had seen the appellant fleeing from the place of occurrence having basula in his hand. According to informant the appellant fled away after scaling over. Govinda Mahato (P.W. 7) also reached to the place of occurrence after hearing hulla and he had seen the appellant standing near door of the room of Gopal Chandra Mahato and he was having basula in his hand. He along with Draupadi tried to catch him but the appellant scaled over and fled away. The manner of occurrence, presence of appellant at the place of occurrence and the manner in which he fled away after committing the offence are inconsistent and aforesaid three witnesses i.e. P.Ws. 2, 3, and 7 have given contradictory statements which could not be relied upon. The manner of occurrence, presence of appellant at the place of occurrence and the manner in which he fled away after committing the offence are inconsistent and aforesaid three witnesses i.e. P.Ws. 2, 3, and 7 have given contradictory statements which could not be relied upon. Learned counsel has further submitted that Draupadi Devi (wife of the deceased) is the only eyewitness and she has stated that the occurrence took place in her bed room and the time of occurrence was 1:00 a.m. mid night. It is submitted that informant is a lady of questionable character for the two reasons-she has disclosed that she is having one son aged about 9 years. The occurrence took place in the year 1993. So, age of child does not match with the date of marriage of Draupadi Devi. The learned counsel has further referred statement of Sita Ram Mahato (D.W.1) who is none else but own uncle of the informant and submitted that marriage between Draupadi and deceased was a result of love affairs. D.W. 1 has stated that after death of Gopal Chandra Mahato, the informant had stated living with Dinesh and she has also delivered a female child. The learned counsel appearing for the appellant has presented a parallel story that Gopal Chandra Mahato was not murdered by the appellant as disclosed by the informant rather he was murdered under a conspiracy in which involvement of the informant-Draupadi Devi (wife of the deceased) could not be ruled out. The occurrence took place in the month of October. Normally it is expected that husband and wife if sleep together in a room, they would keep the room bolted from inside. In the case at hand the informant did not disclose as to how the appellant entered in her room during wee hours i.e. at 1:00 a.m. The manner of occurrence as disclosed by the informant is not only suspicious and unbelievable but shrouded with doubt. The prosecution has miserably failed to prove the place of occurrence because the investigating Officer did not appear nor any sketch map of place of occurrence has been brought on record. No bloodstained cloth of the deceased nor bloodstained bed were sent for chemical examination. No bloodstained earth from the place of occurrence was collected. In the circumstances it could well be said that the prosecution has miserably failed to prove the place of occurrence. 6. No bloodstained cloth of the deceased nor bloodstained bed were sent for chemical examination. No bloodstained earth from the place of occurrence was collected. In the circumstances it could well be said that the prosecution has miserably failed to prove the place of occurrence. 6. The weapon used by the appellant for committing murder is not a regular weapon used for committing offence rather it is a tool being used by the carpenter. The occurrence did not take place at the spur of moment rather the prosecution story suggest that the appellant after hatching out a plan to commit murder entered into the house of the informant during night and killed the deceased. Had it been correct, the appellant should have come with a weapon but it is not a fact appearing in the case at hand. The non-examination of the Investigating Officer is fatal to the prosecution. 7. Learned APP has opposed the argument and submitted that the occurrence took place between intervening night of 7-8 October, 1993 and the place of occurrence is bed room of the deceased. In such cases, availability of independent witness is remote. The family members are the natural witnesses and their testimony could not be thrown away only because they are relatives of the deceased. P.W. 3-Draupadi Devi has fully supported the prosecution case as made out by her in her fardbayan. She has clearly stated that appellant Babaji entered in her room and caused multiple injury to Gopal Chandra Mahato by means of basula and fled away. This fact find support from the evidence of P.W. 2, P.W. 4. P.W.6 and P.W. 7 The ocular evidence given by aforesaid witnesses find support form the post mortem report. Dr. Dhrub Kumar Dhiraj (P.W. 9) in course of conducting post-mortem examination has noticed as many as five incised wound on the deceased and those injuries were caused by sharp cutting weapon. Only because the Investigating Officer has not been examined, entire case should not be disbelieved. There is no merit in this appeal and the same is liable to be dismissed. 8. We have carefully examined the case record, evidence and the impinged judgment. Only because the Investigating Officer has not been examined, entire case should not be disbelieved. There is no merit in this appeal and the same is liable to be dismissed. 8. We have carefully examined the case record, evidence and the impinged judgment. According to the evidence of Draupadi Devi (P.W. 3) she had given her statement at the Police Station in the morning at about 8-9 a.m. But according to fardbayan, it was recorded at 4.30 a.m. on 08.10.1993 at the residence of the informant. Normal conduct of human being is that if the husband is assaulted by anyone in presence of wife, the wife would interfere with and would make strong protest to save her husband. In the case at hand, husband of the informant was assaulted by means of heavy sharp cutting weapon and sustained multiple injuries on his vital part of the body and was lying in a pool of blood on a cot on which he was sleeping. It is nowhere stated by the informant that she ever scuffled in any manner with the appellant at the time of occurrence. The cloth of the deceased and the bed on which he was sleeping at the time of occurrence were badly smeared with blood but no blood stain appeared on the cloth of the informant or on her body though the entire occurrence had taken place in her bed room in her presence. The manner in which appellant escaped from the place of occurrence is not consistent in the statement of PW 2, PW 3 and PW 6. The informant has said that she chased the appellant to catch but he scaled over and fled away and she further says that at the lime the appellant was fleeing from the place, two more persons accompanied him. This story of two persons joining the appellant at the time of fleeing away, does not find support from the statement of any other witness. Again we would like to bring on record that conduct of the informant does not appear to be normal as expected from a wife. She says that she chased the appellant while he was fleeing away after committing the offence but she remained silent as to what prevented her to intervene at the time when assault was going on. In a case of murder, place of occurrence is an important factor to decide the case. She says that she chased the appellant while he was fleeing away after committing the offence but she remained silent as to what prevented her to intervene at the time when assault was going on. In a case of murder, place of occurrence is an important factor to decide the case. In the case at hand no witness has come forward to support that blood stained bed sheet was seized by the Police in their presence. Since, the Investigating Officer has not been examined, description of place of occurrence is not available and sketch map of the place of occurrence, if prepared, could not be brought on record. The manner of assault as indicated by the witnesses suggests that blood must have fallen on the floor also but it is unknown whether it was available at the place or not, whether it was seized or not, because of non-examination of the Investigating Officer. The motive as assigned by the prosecution witnesses could not be affirmed again due to non-examination of the Investigating Officer. The contradictions taken from the month of the witnesses could not be referred due to non-examination of the Investigating Officer. The fardbeyan has not been proved because Kameshwar Singh, the Police Officer who had recorded it and who is the Investigating Officer, did not come forward to prove it. Due to non-examination of Kameshwar Singh it is not clear as to when and at which place fardbayan of informant was recorded. The important relevant questions raised by counsel appearing for the appellant stood unanswered due to non-examination of the Investigating Officer. 9. In the facts and circumstances appearing in the case at hand and the discussions made above, we feel that non-examination of the Investigating Officer has given a fatal blow to the prosecution case and so many questions required to be answered by the Investigating Officer in order to bring the truth on record, remained unearth. 10. In the result, we feel inclined to given benefits of doubt to the appellant and accordingly, the impugned judgment of conviction and order of sentence dated 28.4.2004 and 30.04.2004 respectively, passed by the Additional Sessions Judge, F.T.C. No. IV, Dhanbad in Session Trial No. 111 to 1999 is hereby set aside. The appellant is directed to be released forthwith if not wanted in any other case and for that the convicting/successor Court shall issue appropriate direction, if needed. The appellant is directed to be released forthwith if not wanted in any other case and for that the convicting/successor Court shall issue appropriate direction, if needed. Appeal allowed.