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2017 DIGILAW 139 (JHR)

Dibru Pinguwa v. State of Bihar

2017-01-18

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the Judgment of conviction dated 16.09.1995 and Order of sentence dated 18.09.1995, passed by the learned Sessions, Singhbhum West at Chaibasa, in Sessions Trial No. 47 of 1992, whereby the appellant has been convicted and sentenced for the offence under Section 302 of the Indian Penal Code. The appellant was also charged under Section 307 of the Indian Pena Code, but he has found not guilty for the said charge and has been acquitted from the same. 3. The FIR was lodged on the basis of fardbeyan given by the informant, Mohan Pingua @ Ankura Pingua, wherein he has stated that on the date of occurrence, i.e., on 09.09.1991 at about 03:00 P.M., he was returning to his home along with his uncle. Suddenly the cousin of the informant, i.e., the appellant came there and assaulted the informant by lathi on his head, due to which the informant fell down. It is alleged that thereafter this appellant started strangulating him, whereupon his uncle Mogeya Pingua came to his rescue. It is alleged that accused appellant assaulted Mogeya Pingua by lathi on his head and face, injuring him brutally, due to which he died at the spot. The informant thereafter went to the police station and gave his fardbeyan, in which, it is also stated that the occurrence had aken place due to the previous land dispute between the parties. It is also stated that about 5 years ago, the deceased Mogeya Pingua had assaulted the accused Dibru Pinguwa for which a police case was also lodged, in which Mogeya Pingua was acquitted. On the basis of the fardbeyan of the informant, Jhinkpani (Hat Gamharia) P.S. Case No. 62 of 1991 corresponding to G.R. Case No. 556 of 991 was instituted and the investigation was taken up. After investigation, the police submitted charge-sheet against the appellant and his wife, Chandu Kui. After commitment of the case to the Court of Session, charges were framed against both the accused persons for the offences under Section 302, 307 / 34 of the IPC, and upon the accused persons pleading not guilty and claiming to be tried, they were put on trial. After commitment of the case to the Court of Session, charges were framed against both the accused persons for the offences under Section 302, 307 / 34 of the IPC, and upon the accused persons pleading not guilty and claiming to be tried, they were put on trial. In course of the trial, the prosecution has examined five witnesses, out of whom P.W. 4, Raibari Kui was only tendered by the prosecution. 4. P.W. 2 Mohan Pingua @ Ankura Pingua is the informant of the case. He has stated that the occurrence had taken place about three years ago, on which date his uncle Mageya Pingua was sleeping on his cot at his house when he was assaulted by the accused Dibru Pinguwa. His aunt was also assaulted by Dibru Pinguwa and the informant gave this information to the Police Station. Thereafter at about 04:00 p.m., while he was returning home, accused Dibru Pinguwa assaulted him by lathi on his head and Chando Kui started strangulating him. Mageya Pingua (deceased) came to his rescue, whereupon, he was assaulted by the accused Dibru Pinguwa by lathi due to which Mageya Pingua died at the spot. He came to the police station and gave his fardbeyan whereupon, he put his thumb impression. He stated that he was also medically examined. This witness has stated that the cause of occurrence was due to the previous land dispute between the parties. He had identified both the accused in the Court. This witness was cross-examined by the defence mainly on the previous land dispute between the parties. He has stated that when his uncle was assaulted in his house in the morning, he was not present there. In his cross-examination he has also stated that he had taken his uncle to the police station and thereafter, he had taken him to the hospital. 5. P.W. 3 is Rai Muni, who is the wife of the deceased. She has also came to depose as eyewitness to the occurrence. She has stated that the occurrence has taken place at about 7 years ago at about 06:00 A.M. in the morning. Dibru assaulted her and her husband by lathi. 5. P.W. 3 is Rai Muni, who is the wife of the deceased. She has also came to depose as eyewitness to the occurrence. She has stated that the occurrence has taken place at about 7 years ago at about 06:00 A.M. in the morning. Dibru assaulted her and her husband by lathi. She has further stated that when she herself, her husband and informant were returning from hospital, Dibru again assaulted her and her husband, due to which her husband died at the spot and the informant went to the police station. She has stated that Dibru is her own nephew. She has identified the accused in the Court. In her cross-examination, she denied the suggestion that she is not an eye witness to the occurrence. This witness, though has claimed to be the eye witness to the occurrence, but she has stated nothing about the assault made on the informant. 6. P.W. 1 is Dr. Bishambhar Dayal Sinha, who had conducted the postmortem examination on the dead body of the deceased and had found the following injuries:- (i) One lacerated wound over right frontal region 1” x ½” x skin deep. (ii) One lacerated wound over right parietal region 1½” x ½” x skin deep. (iii) One lacerated wound over left leg 1”x ½” over one inch below knee joint. (iv) Cut injury over ankle joint 1”x ½” on the front side of ankle joint. (v) Cut on the tip of nose. On dissection fracture of frontal bone right side, fracture of right parietal bone, fracture of occipital bone and fracture of sternum were found. Whole theroacic cavity was found full of blood and clot. Rupture of heart and right lung were found. Stomach was found to contain about 100 gms. undigested food particles like rice. Urinary bladder was found full and liver intact. He has stated that the death was caused due to the above injuries, hemorrhage and shock. 7. P.W. 5 Chandra Deo Ram, is the I.O. of the case, has stated about the investigations made by him. This witness has proved the fardbeyan, which was marked as Ext. 2 and he has also proved the formal FIR, which was marked as Ext. 3. He has stated that the informant was in injured condition and he prepared the injury slip also, which was marked Ext.4. This witness has proved the fardbeyan, which was marked as Ext. 2 and he has also proved the formal FIR, which was marked as Ext. 3. He has stated that the informant was in injured condition and he prepared the injury slip also, which was marked Ext.4. He also found the dead body at the place of occurrence and prepared the inquest report, which upon his identification, was marked as Ext. 5. He also seized bloodstained earth and a lathi and he had proved the seizure list, which was marked Ext. 6. He had also seized the bloodstained earth from the house of the deceased and the seizure list was prepared, which was marked Ext. 6/1. He has stated that he had recorded the statement of Rai Kui, wife of the deceased, whom also he had found injured and he prepared injury slip, which was marked Ext. 4/1. In his cross-examination, he has stated that no separate case was instituted for the occurrence that had taken place in the morning. 8. Learned counsel has submitted that the appellant has been falsely implicated in this case and the witnesses have utterly failed to prove the charges against the accused. Learned counsel submitted that the informant has made improvements in the prosecution story, as given in the fardbeyan and accordingly, the evidence of the informant cannot be relied upon. It is also submitted that the enmity between the parties is admitted and accordingly, the false implication of the accused for the previous land dispute between the parties cannot be ruled out. Learned counsel further pointed out that PW. 3, Rai Muni is not the eyewitness of the occurrence and even her presence was not shown at the place of the occurrence, but she has been projected by the prosecution as an eyewitness. Learned counsel pointed out that in course of trial, the other accused, who is the wife of the appellant, has been acquitted by the Court below, but the appellant only has been convicted. It is submitted that due to these discrepancies, the prosecution has not been able to prove charges against the appellant beyond all reasonable doubt and it is a fit case for acquittal of the appellant. 9. It is submitted that due to these discrepancies, the prosecution has not been able to prove charges against the appellant beyond all reasonable doubt and it is a fit case for acquittal of the appellant. 9. Learned counsel for the State, on the other hand, opposed the prayer and has submitted that this is a case of brutal murder of the uncle of the informant, inasmuch as, postmortem report would show that there were five injuries on the body of the deceased, out of which, there were two injuries on the head and upon dissection, four fractures were found on the head region. Learned counsel submitted that the eyewitnesses to the occurrence have fully supported the prosecution case and the oral evidences of the prosecution witnesses are fully corroborated by the medical evidence of P.W. 1, Dr. Bishambhar Dayal Sinha and accordingly, prosecution has been able to prove the charges against the appellant beyond all reasonable doubts and no interference is called-for in the impugned Judgment of conviction and Order of sentence. 10. Having heard learned counsels for both the sides and upon going through the record, we find that the evidences of P.W. 2 Mohan Pingua @ Ankura Pingua and P.W. 3, Rai Muni, who are the eye witnesses to the occurrence, are full of contradictions. We also find that the informant has not only made improvements in the prosecution case as given in the FIR, rather, he has made out a new story in his evidence and has also tried to falsely implicate the other co-accused Chandu Kui, the wife of this appellant, who had been acquitted of the charges. Though in the FIR it is alleged that it was the appellant Dibru Pinguwa, who had assaulted the informant by lathi and this appellant was also strangulating him, but in his evidence, P.W. 2, the informant, has stated that Chandu Kui had strangulating him. There is no allegation in the FIR against the said Chandu Kui and even her presence at the place of occurrence was not shown in the FIR. There is no allegation in the FIR against the said Chandu Kui and even her presence at the place of occurrence was not shown in the FIR. Similarly, the presence of the wife of the deceased at the place of occurrence has also not been shown in the FIR, but P.W. 3, Rai Muni, who is the wife of the deceased has been projected as an eyewitness and she has stated that she was also assaulted by this appellant in the occurrence, while they were returning from the hospital. She has not stated about any assault made on the informant. In the FIR, there is no mention about the occurrence that had been taken place at the house of the deceased in the morning, but in the evidence P.W. 2, Mahon Pingwa and P.W. 3, Rai Muni, have stated about the same. The FIR itself shows that the informant has admitted the previous land dispute between the parties, so in his evidence. Though this witness is alleged to have been assaulted by lathi by the appellant, but no doctor has been examined to prove any injury on the body of the informant. 11. In view of the aforesaid discrepancies, and particularly due to the fact that the informant has made out a new story in his evidence and has also tried to falsely implicate the other co-accused, Chandu Kui, the wife of this appellant, apparently due to admitted enmity, we are of the considered view that the evidence of P.W. 2, Mohan Pingua @ Ankura Pingua is not at all trustworthy and it would be travesty of justice to base the conviction of the appellant on the evidence of P.W. 2, Mohan Pingua @ Ankura Pingua. Similarly, P.W. 3, Rai Muni, is the wife of the deceased and she is clearly a set-up witness, as she is not the eyewitness of the occurrence and even her presence was not shown at the place of the occurrence in the FIR, but she has been projected by the prosecution as an eyewitness. As such, her evidence also cannot be relied upon. These are the only two eye witnesses in this case, whose depositions are not at all trustworthy. In view of the admitted previous enmity, due to land dispute between the parties, we are of the considered view that the false implication of the appellant cannot be ruled out. 12. As such, her evidence also cannot be relied upon. These are the only two eye witnesses in this case, whose depositions are not at all trustworthy. In view of the admitted previous enmity, due to land dispute between the parties, we are of the considered view that the false implication of the appellant cannot be ruled out. 12. In view of the foregoing discussions, we are of the considered view that even though there are two eye witnesses, who have supported the prosecution case, but the appellant is entitled at least to the benefit of doubt and the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 13. In the result, the impugned Judgment of conviction dated 16.09.1995 and Order of sentence dated 18.09.1995, passed by the learned Sessions, Singhbhum West at Chaibasa, in Sessions Trial No. 47 of 1992, are hereby, set aside. The appellant Dibru Pinguwa is given the benefit of doubt and he is acquitted of the charge. The appellant is on bail, and he is discharged from the liabilities of his bail bonds. 14. This appeal is accordingly, allowed. Let the Lower Court Record be sent back forthwith along with the copy of this Judgment. Appeal allowed.