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2016 DIGILAW 160 (JHR)

Rai Singh Besra v. State of Jharkhand

2016-01-21

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This criminal appeal has been directed against the judgment of conviction and order of sentence dated 04.02.2006 and 07.02.2006 respectively, passed by the learned Sessions Judge, Dumka, in connection with Sessions Trial No. 231 of 2004, corresponding to G.R. Case No.407 of 2004 arising out of Dumka (M) P.S. Case No. 48 of 2004 whereby the sole 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. 2. The case of prosecution as it appear from the fardbeyan of Phagora Hembrom recorded on 02.05.2004 at 10.00 a.m. at the house of appellant Rai Singh Besra, in brief, is that on 01.05.2004 at about 9.00 p.m. the informant, after hearing hulla, went to the house of appellant and he had seen the appellant causing assault to his wife Panmuni Basuki by means of lathi. The informant tried to intervene but he was abused whereafater he left the place. On the following morning Panmuni Basuki, wife of the appellant, was found dead in her house and she was having injuries on her person. The informant and other witnesses had noticed injuries on the dead body of Panmuni and described the same in the fardbeyan. On the basis of fardbeyan of Phagora Hembrom, Dumka Sadar (M) P.S. Case No.48 of 2004 dated 02.05.2004 under Section 302 of the Indian Penal Code against appellant Rai Singh Besra was registered. The police, after due investigation, submitted chargesheet and accordingly, cognizance was taken and the case was committed to the court of sessions and registered as Sessions Case No.231 of 2004. The charge under Section 302 of the Indian Penal Code against sole appellant Rai Singh Besra was framed to which he pleaded not guilty and claimed to be tried. The prosecution, in order to substantiate the charge, examined altogether eight witnesses and proved fardbeyan, inquest report etc. The learned Sessions Judge, at the conclusion of trial, placed reliance on the evidence and documents available and held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him, as indicated above. 3. Learned counsel Mrs. Nivedita Kundu, appearing for the appellant, has submitted that prosecution witnesses have not deposed in court wholeheartedly. The conviction has been recorded on the testimony of informant PW3. 3. Learned counsel Mrs. Nivedita Kundu, appearing for the appellant, has submitted that prosecution witnesses have not deposed in court wholeheartedly. The conviction has been recorded on the testimony of informant PW3. From perusal of evidence of PW3 it will transpire that he has not supported the prosecution case wholeheartedly, as made out by him in the fardbeyan. He happens to be Pradhan of the village but he has failed to discharge his responsibility and he has given his fardbeyan in a very casual manner. He says that after hearing hulla he went to the house of the appellant and saw him assaulting his wife by means of lathi. The reason behind assault was that the deceased had not cooked food for the appellant on that unfortunate night. In course of assault when the informant tried to intervene, he was threatened as a result he left the place, went home and spent a peaceful night. In the morning too, he did not bother to inform the police about the incident which he had witnessed on previous night. It was the police who arrived at the village on rumour. The informant PW3 has gone to the extent of saying that he does not know as to what was recorded in the fardbeyan, he had signed the same at the instance of police officer who had recorded it. Conviction cannot be recorded on the testimony of such witness. She has submitted that Shyam Soren PW2, Durga Hembrom PW5 and Sunil Soren PW6 have not thrown light on the prosecution case and they have turned hostile. Basudan Hembrom happens to be a witness to the seizure of the lathi, allegedly used for commission of the offence and that lathi has not been produced before the court. Dr. Dewashish Rakshit PW1 had conducted post mortem examination on the dead body of Panmuni Basuki and he found bruise, lacerated wound and abrasion to which he has described. The Investigating Officer has proved the fardbeyan and other relevant documents like inquest report, seizure list etc. Only because death of Panmuni Basuki was homicidal, her husband (appellant Rai Singh Besra) could not be held guilty for the offence of murder. Cogent evidence to prove the guilt of appellant is lacking and therefore, appellant deserve to be given benefit of doubt and the impugned judgment is liable to be set aside. 4. Only because death of Panmuni Basuki was homicidal, her husband (appellant Rai Singh Besra) could not be held guilty for the offence of murder. Cogent evidence to prove the guilt of appellant is lacking and therefore, appellant deserve to be given benefit of doubt and the impugned judgment is liable to be set aside. 4. Learned A.P.P. has opposed the argument and submitted that informant had seen the appellant causing assault to his wife on 01.05.2004 at about 9.00 p.m. and on the following morning dead body of Panmuni Basuki was found lying in the house and she was having multiple injuries on her person. Evidence of doctor corroborate ocular account of occurrence given by PW3. The lathi used for causing assault to the deceased was recovered and seized. The evidence of prosecution is intact and the impugned judgment of conviction and sentence need no interference. 5. We have examined the case record, perused the evidence and documents available. It is a case which was initiated on the basis of fardbeyan of PW3 Phagura Hembrom who is Pradhan of the village. We have carefully scrutinised the evidence of PW3 and we do not find it consistent and inspiring confidence. It appears that in a very casual manner he has given his fardbeyan to the police to put the law into motion. He did not inform the police when he had seen the assault caused to the deceased by the appellant on 01.05.2004 at 9.00 p.m. though distance of police station from the place of occurrence is hardly 7 k.m. We do not find that in the morning he himself had taken interest to know about the occurrence which he had witnessed during previous night. When there was hulla in the village that Panmuni Basuki is lying dead in her house, he along with other villagers went to the place of occurrence. The evidence of doctor PW1 and Investigating Officer PW8 can be viewed as that of formal witness because material witnesses have not supported the prosecution case. The villagers Shyam Soren PW2, Durga Hembrom PW5 and Sunil Soren PW6 have turned hostile. Chotelal Besra PW7 and Basudev Hembrom PW4 have not thrown light on the incident and they are the witnesses who could learn about the occurrence on the following morning. The villagers Shyam Soren PW2, Durga Hembrom PW5 and Sunil Soren PW6 have turned hostile. Chotelal Besra PW7 and Basudev Hembrom PW4 have not thrown light on the incident and they are the witnesses who could learn about the occurrence on the following morning. The evidence which is available on record do not appear cogent and reliable to hold the appellant guilty and it could well be observed that prosecution has failed to prove the charge of murder against the appellant beyond shadow of all reasonable doubt. As a result, we feel inclined to give benefit of doubt to the appellant. Accordingly, the impugned judgment of conviction and sentence dated 04.02.2006 and 07.02.2006 respectively, passed by the District and Sessions Judge, Dumka, in connection with Sessions Trial No. 231 of 2004, corresponding to G.R. Case No.407 of 2004 arising out of Dumka (M) P.S. Case No. 48 of 2004 is hereby set aside. Appellant Rai Singh Besra is directed to be released from jail custody forthwith, if not wanted in any other case and for that appropriate direction may be issued, if necessary, by the convicting/successor court. Accordingly, this appeal stands allowed. We record note of appreciation in favour of learned counsel Mrs. Nivedita Kundu. Appeal allowed.