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2017 DIGILAW 1265 (JHR)

Budhuwa Tirkey v. State of Jharkhand

2017-07-26

ANANDA SEN, H.C.MISHRA

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JUDGMENT : Heard Sri Sanjay Kumar Chaturvedi, learned amicus curiae, appointed by the Court for the appellant, and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction and Order of sentence dated 30.07.2004, passed by the learned 1st Additional Sessions Judge, Gumla, in S.T No. 80 of 2001, whereby, the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo rigorous imprisonment for life for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of Birso Lakra, the wife of the deceased, Sukru Tigga. She has stated that on 27.10.2000, her husband had gone to harvest the Til crop but he did not return back. Due to the illness of her son, the informant also could not go to search her husband. In the morning, some children informed her that the dead body of her husband was lying on the pathway, whereupon, she went there and saw the dead body of her husband in the pool of blood with injuries on his head. She has stated in the fardbeyan that about five months prior to the occurrence, the accused, Budhuwa Tirkey had put night-soil in the community hand-pump, due to which, there was a meeting of the 'Mahila Samiti', in which, he was assaulted by the ladies and for that, he was having enmity with the husband of the informant. She has suspected that due to the said enmity, the accused, Budhuwa Tirkey had committed the murder of her husband. On the basis of the fardbeyan of the informant, Basia P.S Case No.72 of 2000, corresponding to G.R No.793 of 2000, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, the charge was framed against the accused appellant for the offence under Section 302 of the Indian Penal Code, to which he pleaded not guilty and claimed to be tried, and accordingly, he was put to trial. In course of trial, 12 witnesses were examined on behalf of the prosecution. 5. In course of trial, 12 witnesses were examined on behalf of the prosecution. 5. P.W.-2 Birso Tigga @ Lakra is the informant and the wife of the deceased. She has stated that on the day of occurrence, her husband had gone to harvest Til crop, but he did not return back and she could not go to search him due to the illness of her son, Anand Roshan Tigga. In the morning, the dead body of her husband was found. She has stated that in the night, the accused came to the house of Rudra and said that since Rudra had fled away, he was saved and he was coming after killing one person. He would take revenge from everyone. This witness has also stated that she had seen the dead body of her husband, which was in the pool of blood. She has also stated that there was enmity between her husband and the accused for putting night-soil in the community hand-pump due to which he was threatening her husband. She has stated that her statement was recorded by the police and she had put her thumb impression thereon. She has identified the accused in the Court. In her cross-examination, she has denied the suggestion to have falsely implicated the accused. 6. P.W.-7 Anand Roshan Tigga, who is the son of the deceased, P.W.-3 Saniyaro Toppo, who is the sister-in-law of the deceased and P.W.-4 Alok Tigga, have also stated that they had seen the dead body of the deceased and there was enmity with the appellant for the reason of putting night-soil in the community hand-pump. 7. P.W.-5 Rajesh Kujur has stated that he had seen the accused, Budhuwa with an Axe, but he has not stated anything about the occurrence, and P.W.-6 Shil Banush Tigga @ Budhu Tigga has only stated that he had seen the accused restless and on the next day, he had seen the dead body of the deceased. He has also not stated anything about the occurrence. P.W.-8 Nandi Tirkey and P.W.-10 Marium Lakara have been examined on the point of the meeting of Mahila Samiti, in which the accused was allegedly reprimanded for putting night-soil in the community hand-pump. These witnesses have also not stated anything on the point of occurrence. P.W.-9 Gosnain Lakra has turned hostile and has denied any knowledge about the occurrence. 8. P.W.-8 Nandi Tirkey and P.W.-10 Marium Lakara have been examined on the point of the meeting of Mahila Samiti, in which the accused was allegedly reprimanded for putting night-soil in the community hand-pump. These witnesses have also not stated anything on the point of occurrence. P.W.-9 Gosnain Lakra has turned hostile and has denied any knowledge about the occurrence. 8. P.W.-1 Gunjua Kujur is only a witness to the seizure list of the blood stained soil and the inquest report of the dead body, and he has proved his signatures on the seizure list and the inquest report. 9. P.W.-11 Dr. Akhauri Durga Nandan Prasad is the Medical Officer, who had conducted the post-mortem examination on the dead body of the deceased on 28.10.2000 and he had found one lacerated wound on the occipital region of the skull with laceration of the brain matter and had found face of the deceased smashed, and has stated that both these injuries combined together, had resulted in the death of the deceased. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-3. 10. P.W.-12 Vijay Kumar Singh is the Investigating Officer of the case, who has stated that on 27.10.2000, while he was posted as Officer In-charge of Basia Police Station, he got the information of the murder of one person at village-Tetra Pakar Toli, which he entered in the Station Diary and went to the place of occurrence, where he recorded the fardbeyan and the restatement of the informant. He has given the details of the place of occurrence. He has stated that he prepared the inquest report of the dead body and had seized the bloodstained soil from the place of occurrence and had prepared the seizure list. He also arrested the accused on 29.10.2000 and has stated that after completing the investigation, he had submitted the charge-sheet. This witness has proved the fardbeyan, the formal FIR, the inquest-report and the seizure list, which were marked Exhibits-4, 5, 6 & 7 respectively. 11. Only on the basis of these evidences, the accused-appellant was convicted and sentenced for the offence as aforesaid, by the Trial Court below. 12. This witness has proved the fardbeyan, the formal FIR, the inquest-report and the seizure list, which were marked Exhibits-4, 5, 6 & 7 respectively. 11. Only on the basis of these evidences, the accused-appellant was convicted and sentenced for the offence as aforesaid, by the Trial Court below. 12. Learned amicus curiae, arguing for the appellant, has submitted that the impugned Judgment of conviction and Order of sentence passed against the appellant, cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charge against the appellant beyond all reasonable doubts. It is submitted that there is no eyewitness to the occurrence, nor there is any circumstantial evidence against the appellant, except suspicion. It is only suspected that due to the previous enmity for putting night-soil in the community hand-pump, the appellant had committed the murder of the deceased. Learned counsel also pointed out that there is no recovery from the appellant, though the appellant was arrested from his house. Learned counsel accordingly, submitted that the prosecution has failed to prove the charge against the appellant, and it is a fit case in which the appellant ought to have been acquitted by the Trial Court. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that all the witnesses have stated that the occurrence had taken place due to the fact that the appellant had put night-soil in the community hand-pump before the occurrence, for which, he was reprimanded by the Mahila Samiti of the village and he was having grudge for that, due to which, he committed the offence. Learned counsel submitted that P.W.-5 Rajesh Kujur had seen the appellant with axe and P.W.-6 Shil Banush Tigga @ Budhu Tigga, had seen the appellant restless and thereafter, the dead body of the deceased was found, which are also the circumstances against the appellant. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the appellant beyond all reasonable doubt. 14. Having heard learned counsels for both sides and upon going through the record, we find that practically, this is a case of no evidence against the appellant. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the appellant beyond all reasonable doubt. 14. Having heard learned counsels for both sides and upon going through the record, we find that practically, this is a case of no evidence against the appellant. There is only suspicion against the appellant in the evidence of the witnesses that he might have committed the offence due to the fact that he was reprimanded by the ladies of the village for putting night-soil in the community hand-pump. There is no eyewitness to the occurrence, nor there is any witness who had last seen the appellant with the deceased. The statement of P.W.-2 Birso Tigga @ Lakra, in her evidence, that in the night, the accused came to the house of Rudra and said that since Rudra had fled away, he was saved and he was coming after killing one person, and he would take revenge from everyone, appears to be only an improvement over the prosecution case, as this fact is not stated in the F.I.R. Even the said Rudra has not been examined by the prosecution. P.W.-5 Rajesh Kujur, though has claimed to have seen the appellant with an axe, and P.W.-6 Shil Banush Tigga @ Budhu Tigga, has stated that he had seen the appellant restless, but these witnesses have not stated anything about the occurrence. 15. We are of the considered view that none of the witnesses, either singly or jointly, have been able to prove the prosecution case against the appellant and practically, this is a case of no evidence against appellant. Accordingly, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 16. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 30.07.2004, passed by the learned 1st Additional Sessions Judge, Gumla, in S.T No. 80 of 2001, are hereby, set aside. The appellant Budhuwa Tirkey, is found not guilty and he is acquitted of the charge. The appellant is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 17. Before parting with this Judgment, we must record that we have been very ably assisted by Sri Sanjay Kumar Chaturvedi, learned amicus curaie. The appellant is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 17. Before parting with this Judgment, we must record that we have been very ably assisted by Sri Sanjay Kumar Chaturvedi, learned amicus curaie. We direct the Secretary, High Court Legal Services Committee, to make the payment of prescribed remuneration to the learned amicus curaie. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 18. This appeal is accordingly, allowed. Let the Lower Court Records be sent back forthwith to the Court concerned, along with a copy of this Judgment.