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2016 DIGILAW 52 (JHR)

Tala Kora Soren v. State of Jharkhand

2016-01-06

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. These appeals have been directed against the judgment of conviction and order of sentence dated 28th November, 2006 and 29th November, 2006, respectively, passed by learned 1st Additional Sessions Judge, Godda in connection with Sessions Case No.11 of 2005/37 of 2006, arising out of Boarizore P.S. Case No.76 of 2004, corresponding to G.R. No.776 of 2004, whereby the appellants have been held guilty for the offence punishable under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The fact, which appears from the Fardbeyan of Mariya Hembrum, wife of Late Sarju Kisku, recorded on 15th August, 2004, at 12:45 hrs., at village Koluha, in brief, is that on 15th August, 2004, at about 6:00 a.m., while the deceased Sarju Kisku was ploughing his field, all the appellants, armed with Lathi, reached to the place and demanded their share in the landed property. The appellants caused assault to Sarju Kisku (husband of the informant) by means of Lathi and killed him. At the time of occurrence, son of the deceased was also present, but due to fear he fled away from the place by raising alarm. On the basis of Fardbeyan of Mariya Hembrum, Boarizore P.S. Case No.76 of 2004 dated 15th August, 2004, corresponding to G.R. No.776 of 2004, under Section 302/34 of the Indian Penal Code was registered against the appellants. The police after due investigation submitted charge sheet; accordingly, cognizance was taken; the case was committed to the Court of Session and registered as Sessions Case No.11 of 2005. 3. Initially charge under Section 302/34 of the Indian Penal Code was framed on 1st March, 2005, but the charge was amended on 8th November, 2006 and altered under Section 302/149 of the Indian Penal Code. The prosecution, in order to substantiate the charge, examined altogether seven witnesses, including the informant, doctor and investigating officer. Learned Additional Sessions Judge at the conclusion held the appellants guilty for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and sentenced them as indicated above. 4. The appellants have assailed the impugned judgment mainly on the ground that there is no eye-witness to the occurrence, but P.Ws.1, 2, 3 and 5 have tried to prove themselves as eye-witnesses. Needless to mention, none of the aforesaid witnesses have explained the entire episode from beginning to end. 4. The appellants have assailed the impugned judgment mainly on the ground that there is no eye-witness to the occurrence, but P.Ws.1, 2, 3 and 5 have tried to prove themselves as eye-witnesses. Needless to mention, none of the aforesaid witnesses have explained the entire episode from beginning to end. This could also be gathered that no witness has given detailed account of assault. Regarding manner of occurrence, general and vague statement has been given by aforesaid witnesses. They have not stated specifically as to which of the accused caused assault and what was the overt act committed by them. Instead of giving clear picture, they have taken a safer side and said that all the appellants came to the place of occurrence armed with Lathi and caused assault to the deceased and killed him. So far as the evidences of P.Ws.1 and 2 are concerned, they did not remain present till the occurrence was over. They did not inform to any one about the occurrence. The statement given by these two witnesses appears to have been given in a casual manner and that is not expected from a human being, who had witnesses such an occurrence of murder. Learned counsel for the appellants has raised a question on the point of presence of P.Ws.1 and 2. Informant- Mariya Hembrum, who happens to be wife of the deceased, has disclosed names of three persons, who had seen the occurrence but those three persons did not come forward to support the prosecution story. The names of P.Ws.1 and 2 do not find place in the statement of the informant-P.W.3. Learned counsel appearing for the appellants has further submitted that P.W.5, who happens to be son of the deceased, is not a reliable witness. The appellants are none else but closely related to the deceased and the motive as assigned by the prosecution is land dispute. Out of six appellants, three are own sisters of the deceased, two are brother-in-law and one of the accused-Richu is cousin. If they had gone to the extent of committing murder, they would not have spared P.W.5 to inherit the property. Out of six appellants, three are own sisters of the deceased, two are brother-in-law and one of the accused-Richu is cousin. If they had gone to the extent of committing murder, they would not have spared P.W.5 to inherit the property. The statement of P.W.5 has also been referred to strengthen the argument that no witness had seen the occurrence and it is apparent from Para-5 of the deposition of P.W.5 that all the villagers had gone to the place of their work and nobody was present in the village and, therefore, he could not inform any one about the incident. He did not corroborate the presence of P.Ws.1 and 2 at the place of occurrence. 5. It is also argued that the findings given in the postmortem is also contradictory. The doctor had found Injury No.1 Puncture wound 3/4” in diameter near the oughter conthes of left eye. On suggestion, he says that it may be caused by spear. No material prosecution witnesses have disclosed that any of the accused was armed with spear. It is disclosed by the doctor that on dissection, fracture of 6th and 7th rib on left side had been noticed. These fractures could have only been caused if the assault would have been inflicted to the deceased while he was lying on the ground. Again it is submitted that none of the material witnesses had seen the occurrence and that is why they have failed to give actual account of incident and they could not be considered as reliable witnesses. 6. Learned A.P.P. appearing for the State has opposed the argument and submitted that the witnesses are rustic innocent Santhali and they have deposed what they had seen. The informant has supported the prosecution case as made out in her Fardbeyan. P.Ws.1 and 2 are independent witnesses and they have supported the case of the prosecution. P.W.5, who happens to be minor son of the deceased, has named all the appellants, who were armed with Lathi and caused assault to his father till he died. The Doctor-P.W.4, who had conducted postmortem examination, and Manzoor Ali-P.W.6, who had investigated into the matter, have supported the prosecution case and proved the postmortem and other documents. Learned Trial Court has rightly held the appellants guilty and the judgment of conviction and order of sentence needs no interference. 7. The Doctor-P.W.4, who had conducted postmortem examination, and Manzoor Ali-P.W.6, who had investigated into the matter, have supported the prosecution case and proved the postmortem and other documents. Learned Trial Court has rightly held the appellants guilty and the judgment of conviction and order of sentence needs no interference. 7. We have gone through the impugned judgment, deposition of witnesses, documents proved and marked exhibits and Lower Court Record. Considering the argument advanced on behalf of counsel appearing for the appellants, we have been compelled to go through the evidence on record. P.W.1 has disclosed the names of four appellants and she did not remain present till the occurrence was over. She says that later she came to learn about death of Sarju. In her cross-examination, at Para-2, she has stated that her house is situated at a distance of about 6-7 ft. (Teen Hath) from the place of occurrence, but according to description of place of occurrence recorded by the Investigating Officer, the place of occurrence was the field, which is in an area of 1½ Bigha. Some portion was ploughed and in some portion of the field paddy was shown, what we mean to say is that the Investigating Officer did not notice house of P.W.1, situated just within 10 ft. from the place of occurrence. Furthermore, the informant did not corroborate presence of either P.W.1 or P.W.2 at the place of occurrence. Simultaneously these two witnesses also did not disclose presence of the informant at the place of occurrence at the relevant point of time. In the circumstances, We feel that no reliance could be placed on the statement of these two witnesses to hold the appellants guilty for the offence punishable under Section 302 of the Indian Penal Code. 8. We have given thoughtful consideration to the statements of P.Ws.3 and 5, but we do not find that any of them had given true picture of the incident. According to first information report, P.W.5 was present with the deceased in the field. At the time of incident, he raised alarm and then fled away. He did not say that his mother-P.W.3 reached to the place of occurrence within his view. The description of injury given in the postmortem report appears contradictory to the ocular version given by the witness. 9. At the time of incident, he raised alarm and then fled away. He did not say that his mother-P.W.3 reached to the place of occurrence within his view. The description of injury given in the postmortem report appears contradictory to the ocular version given by the witness. 9. In view of the evidence and discussions made above, We find merit in these appeals and we feel inclined to set aside the impugned judgment of conviction and order of sentence dated 28th November, 2006 and 29th November, 2006, respectively, passed in connection with Sessions Case No.11 of 2005/37 of 2006. Accordingly, these appeals are allowed. The judgment of conviction and order of sentence passed against the appellants by learned court below in Sessions Case No.11 of 2005/37 of 2006 is hereby set aside. The appellants of Cr. Appeal (DB) No.20 of 2007, who are in custody in connection with Sessions Case No.11 of 2005/37 of 2006, are directed to be released forthwith, if not wanted in any other case. The appellants of Cr. Appeal (DB) No.1696 of 2006, who are on bail, are discharged from the liability of their bail bonds and set at liberty. 10. Mr. Rishi Pallav, A.C., has been requested to assist the Court in Cr. Appeal (DB) No.20 of 2007 and he is entitled to receive required fee from JHALSA and for that Member Secretary, JHALSA is requested to do needful. Appeals allowed.