Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 638 (JHR)

Mahendra Bhuiya v. State of Jharkhand

2016-04-18

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 30.07.2007 and 02.08.2007 respectively, passed by learned Addl. Sessions Judge, F.T.CI., Dhabad, in connection with Sessions Trial No. 152/03, corresponding to G.R. Case No. 2892/02, arising out of Jharia P.S. Case No. 37/02, whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/-. 2. The facts, emerging from fardbeyan of Kajra Bhuiya, recorded on 05.11.2002, at 18.30 hrs., at Bhutgarhiya, Bhuiyapati, District Dhanbad, are that on 05.11.2002, at about 5.00 P.M., appellant demanded money from his wife Basanti Devi (deceased). When she refused to oblige, she was assaulted by the appellant by means of fists and kicks. She was also assaulted by means of an iron rod. Lastly, appellant climbed on her chest and pressed, as a result, she died on the spot. When informant tried to intervene, he was threatened and chased. As per informant, the occurrence was witnessed by nearby people. 3. On the basis of the fardbeyan of Kajra Bhuiya, Jharia P.S. Case No. 37/02, dated 05.11.2002, under Section 302 of the Indian Penal Code, was registered against the appellant. 4. The investigation was carried out, charge-sheet was submitted and accordingly, cognizance was taken against the appellant and the case was committed to the Court of Sessions and registered as Sessions Trial No. 152/03. 5. Charge under Section 302 of the Indian Penal Code was framed, to which, the appellant pleaded not guilty and claimed to be tried. To substantiate the charge, prosecution has examined altogether eleven witnesses, including the informant, Doctor, who had conducted post mortem examination, and the Investigating Officer. Learned trial Judge placing reliance on evidences and documents available on records, held the appellant guilty and inflicted sentence, as indicated above. 6. Appellant has assailed the impugned judgment on the ground that Piyaru Bhuiya PW1; Rampati Devi, PW3; Utwa Bhuiya, PW5; Devanti Devi, PW7 have been declared hostile and they have not supported the prosecution case to any extent. Reshma Devi, PW6; Raj Kumar Bhuiya, PW8 are hearsay witnesses and they have said that they could learn that Basanti Devi has been killed. Reshma Devi, PW6; Raj Kumar Bhuiya, PW8 are hearsay witnesses and they have said that they could learn that Basanti Devi has been killed. Learned Trial Judge has mainly relied upon the statements of Ram Lal Bhuiya, PW2; Kajra Bhuiya, PW4 (informant) and Munkawa Devi, PW9 and held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code. It is submitted that learned Trial Judge has committed error by placing reliance on the depositions of aforesaid three witnesses because the evidences given by them suffers with many contradictions. It is pointed out that Munkawa Devi, PW9 is none else but sister of Ram Lal Bhuiya, PW2. Kajra Bhuiya is father of the deceased and the informant. All these three witnesses are related to the deceased and they are highly interested witnesses. Ram Lal Bhuuiya, PW2 tried to pretend himself to be an eye witness, but, in fact he had not seen the occurrence at all. He says that deceased was assaulted by the appellant by means of an iron rod but the post mortem report does not indicate that the injuries, which were fatal, were caused by iron rod. According to Doctor, ribs 2 to 10 were found fracture. If those injuries were caused by means of an iron rod, the blow if given by iron rod must have produced some injuries on the chest, may be lacerated, but, no lacerated wound was found by Doctor. Furthermore, PW2 has stated that occurrence took place on the eve of Holi festival but father of the deceased says that occurrence took place on the eve of Diwali. He further says that deceased was blessed with four children, whereas, brother Ram Lal Bhuiya, PW2 says that Basanti was blessed with two children and her marriage was solemnized one year ago. Again he says that on 30th March quarrel had taken place and it was reported to the police, but, this fact does not find support from the evidence of prosecution witnesses. Munkawa Devi, PW9 gives a different story. She says that occurrence took place at about 5.00 P.M. The deceased was chased by her husband Mahendra Bhuiya. In order to save the child, Mahendra Bhuiya killed his wife by causing injuries to her by means of iron rod. Munkawa Devi, PW9 gives a different story. She says that occurrence took place at about 5.00 P.M. The deceased was chased by her husband Mahendra Bhuiya. In order to save the child, Mahendra Bhuiya killed his wife by causing injuries to her by means of iron rod. Again it is stated that the injuries, due to which Basanti Devi died, were not caused by means of iron rod. The manner of occurrence, as described by PW9, does not find support from the evidence of PW4, who is informant. If version of PW9 given in para5 is accepted, nobody else was present at the place of occurrence. If it was so, informant was not present at the scene of occurrence and he had not seen the occurrence. Place of occurrence also becomes contradictory as per the statement of PW4 and PW9. PW4 said that occurrence took place inside the room, whereas, PW9 says that deceased was chased and then she was killed outside the house. Learned counsel has further pointed out that Investigating Officer, who has admitted in para11 of his deposition that Ram Lal Bhuiya, PW2 had told him that when he returned from brickklin he was informed by Munkawa Devi, PW9 that Mahendra Bhuiya has killed his wife and fled away. If the version of Investigating Officer is correct then Ram Lal Bhuiya, PW2 had not seen the occurrence. Now, by referring the evidence of Kajra Bhuiya, PW4, it is submitted that his presence at the place of occurrence is also doubtful. He has admitted that he was living with his family members in a different house other than the house of the deceased. He did not disclose as to what instigated him to go to the house of the informant at the relevant point of time. While referring all these contradictory statements of so-called eyewitnesses PW2, PW4 and PW9, it is submitted that conviction, recorded on the basis of such contradictory statements, is not sustainable. 7. Learned A.P.P. has opposed the argument. 8. Having heard both the sides and after going through the evidences available on record, we find force in the argument of learned Amicus Curiae. PW2, PW4 and PW9 are close relatives of the deceased and according to their statements, they are residents of same locality, but, the evidences, which they have given before the Court, are quite contradictory to each other. PW2, PW4 and PW9 are close relatives of the deceased and according to their statements, they are residents of same locality, but, the evidences, which they have given before the Court, are quite contradictory to each other. Even date of occurrence stated by these witnesses is not consistent. They do not know how many children the deceased was having at the time of occurrence. The manner of occurrence and the place of occurrence, described by aforesaid witnesses, are also contradictory. We do not feel it safe to uphold the judgment of conviction and order of sentence recorded by Trial Court on the basis of such contradictory statements of aforesaid three witnesses. 9. In the result, we feel inclined to give benefit of doubt to the appellant and accordingly, this appeal stands allowed. Judgment of conviction and order of sentence dated 30.07.2007 and 02.08.2007, respectively, passed by learned Addl. Sessions Judge, F.T.C.I, Dhabad, in Sessions Trial No. 152/03, is, hereby, set aside. The appellant, named above, who is lodged in jail, is, hereby, 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.