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2018 DIGILAW 1836 (JHR)

Rabikant Murmu v. State Of Jharkhand

2018-08-13

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - Heard, Mr. Aman Shekhar learned counsel for the appellant and Mr. Anand Kumar Pandey, learned Additional Public Prosecutor appearing for the State. 2. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 25.03.2004, passed by the learned Additional District and Sessions Judge, Fast Track Court, Rajmahal, in S. C. No.255 of 1993 / S.T. No.209 of 2003, whereby the sole appellant, Rabikant Murmu, has been convicted for the offence committed and punishable under Section 324 of the Indian Penal Code and awarded him to undergo rigorous imprisonment for two years and a fine of Rs. 1,000/-. In default of payment of fine amount, to further undergo rigorous imprisonment for one month. 3. The prosecution case is based upon the fardbeyan of the informant, Thakurain Hansda, recorded by Sita Ram Rai, Sub Inspector of Police, Barharwa Police Station, at Barharwa Hospital at 18.30 hours, on 08.11.1988, wherein the informant has alleged that while she was going along with her husband, Jerman Murmu to Ram Nagar Hatiya, at around 3 p.m., she met covillager, Rabi Kant Murmu (appellant) armed with bow and arrow in his hand. As soon as, the informant reached near Rabi Kant Murmu at a distance of ten yards, he charged informant with an allegation of being daain and said that she will be killed. Thereafter, the accused/appellant with an intention to kill, shot arrow pointing towards her chest, but the same entered into her abdomen and she fell down. The informant has alleged that her husband, Jerman Murmu and other people of village took her to Barharwa Hospital, where she is admitted. She has further stated that the occurrence has been witnessed by her husband and other co-villagers. On the basis of the left hand thumb impression made by the informant on the ''fardbeyan'', the Police instituted First Information Report bearing Barharwa P.S. Case No. 36 of 1988, dated 08.11.1988 corresponding to G.R. No.342 of 1988 under Section 307 of the Indian Penal Code against the accused/appellant. 4. After investigation, the Police submitted charge-sheet bearing No.39 of 1988 dated 19.11.1988 under Sections 324, 326 and 307 I.P.C. against the accused/appellant. The cognizance of the offence has been taken vide order dated 13.12.1988 and the case has been committed to the Court of Sessions vide order dated 09.03.1989. 5. 4. After investigation, the Police submitted charge-sheet bearing No.39 of 1988 dated 19.11.1988 under Sections 324, 326 and 307 I.P.C. against the accused/appellant. The cognizance of the offence has been taken vide order dated 13.12.1988 and the case has been committed to the Court of Sessions vide order dated 09.03.1989. 5. The charge has been framed against the accused/appellant on 19.12.2002 under Sections 307 and 326 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried, thus was put under trial. 6. The prosecution has altogether examined two witnesses in order to prove its case. Thakurain Hansda, informant-cum-victim of the case has been examined as P.W.1 and Jerman Murmu, husband of the informant has been examined as P.W.2. The prosecution in addition to the oral evidence, has also proved the signature on the ''fardbeyan'' of Jerman Murmu, husband of the informant and the same has been marked as Exhibit-1. 7. After closure of the prosecution evidence, the statement of the appellant/accused has been recorded under Section 313 Cr.P.C. on 10.03.2004, wherein the appellant has categorically stated that he has falsely been implicated in this case and there is no evidence against him. The defence has also examine one witness, namely, Hofna Marandi as D.W.1. 8. After hearing the learned counsel for the parties and on perusal of the records, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant. Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present Criminal Appeal before this Hon''ble Court, assailing the impugned judgment of conviction and order of sentence. 9. Heard, Mr. Aman Shekhar, learned counsel for the Appellant. Learned counsel appearing for the appellant has submitted that the impugned judgment of conviction and order of sentence, is bad in law and cannot sustain in the eyes of law. Learned counsel appearing for the appellant has further submitted that the Investigating officer and the Doctor have not been examined in this case nor the arrow which hit the victim has either been seized or produced before the learned trial Court. Learned counsel appearing for the appellant has further submitted that no independent witness has been examined in this case and the case revolved around the evidence adduced by Thakurain Hansda, informant-cumvictim of the case. Learned counsel appearing for the appellant has further submitted that no independent witness has been examined in this case and the case revolved around the evidence adduced by Thakurain Hansda, informant-cumvictim of the case. Learned counsel appearing for the appellant has further submitted that even contents of the First Information Report has not been exhibited and only signature of Jerman Murmu (P.W.2) on the ''fardbeyan'' has been exhibited in the learned trial court. Learned counsel appearing for the appellant, has further submitted that in absence of any legal material against the appellant, the appellant cannot be convicted under Section 324 I.P.C. Learned counsel appearing for the appellant has further submitted that to prove the guilt under Section 324 I.P.C., the injury report or the examination of the Doctor or the mark of injury must be proved by the prosecution. Though the learned trial court has framed charge under Sections 307 and 326 I.P.C. but considering lacunae in the prosecution case, the learned trial court has convicted the appellant under Section 324 I.P.C. only. Learned counsel appearing for the appellant has further submitted that place of occurrence has not been proved as the Investigating officer has not been examined in this case. Learned counsel appearing for the appellant has further submitted that non-examination of the Investigating officer has caused serious prejudice to the appellant, as the appellant could not get an opportunity to elucidate the fact by cross-examining the Investigating officer in order to prove his innocence. Learned counsel for the appellant has further submitted that the description of arrow given by P.W.1 (Thakurain Hansda) and the description given by her husband (P.W.2) is contradictory to each other, as P.W.1 has said that arrow was of five hands whereas P.W.2 has said that it is of two hands, as such, in absence of production of arrow by the prosecution coupled with the fact that there is contradiction with regard to the size of arrow, it can certainly be said that the appellant has falsely been implicated in this case and as such, the conviction of the appellant under Section 324 I.P.C. cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that there was previous enmity prevailing between the parties. Learned counsel for the appellant has further submitted that there was previous enmity prevailing between the parties. Learned counsel for the appellant has further submitted that no charge under Prevention of Witch (Daain Practice) Act,1999, has been framed by the learned trial court, as such, the genesis of the case has not been proved. Learned counsel appearing for the appellant, while relying on the aforesaid submissions, has submitted that the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law and the same requires to be set aside by this Hon''ble Court. 10. Heard Mr. Anand Kumar Pandey, learned Additional Public Prosecutor appearing for the State Learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed upon the evidence of injured-cuminformant (P.W.1). Learned Additional Public Prosecutor appearing for the State has further submitted that signature of Jerman Murmu (P.W.2), husband of the informant, on the ''fardbeyan'' has been proved and marked as Exhibit-1, as such, there is sufficient evidence to convict the appellant under Section 324 I.P.C. and the learned trial court has rightly convicted the appellant under Section 324 I.P.C. 11. Heard, Mr. Aman Shekhar, learned counsel appearing for the appellant and Mr. Anand Kumar Pandey, learned Additional Public Prosecutor appearing for the State and from perusal of the records, it appears that the First Information Report has not been proved and exhibited in this case, rather signature of Jerman Murmu (P.W.2) on the ''fardbeyan'' has been proved and marked as Exhibit-1. The victim and her husband has been examined as P.W.1 and P.W.2 respectively and none of the independent witnesses have been examined in this case, although the victim claimed that some persons have witnessed the occurrence and they will explain about the occurrence, but none of the independent witnesses have been examined in this case. This Court has also found that non-examination of the Investigating Officer has caused serious prejudice to the appellant, as the appellant has not been afforded an opportunity to cross-examine him to elucidate the facts to prove his innocence This Court has also found that there is neither injury report nor medical report has been brought on the record nor the Doctor, who has examined the victim, has been examined in this case nor the arrow has been brought on record. Under the aforesaid background, in absence of any material to convict the appellant under Section 324 I.P.C., the appellant deserves to be acquitted by extending benefit of doubt. Under the circumstances, the benefit of doubt is granted in favour of the appellant by acquitting the appellant of charge and conviction under Section 324 I.P.C. 12. Accordingly, the judgment of conviction and order of sentence, both dated 25.03.2004, passed by the learned Additional District and Sessions Judge, Fast Track Court, Rajmahal, in S. C. No.255 of 1993 / S.T. No.209 of 2003 is hereby set aside by giving benefit of doubt in favour of the appellant. 13. In the result, the instant Criminal Appeal stands allowed. 14. The appellant, who is on bail, is discharged from the liability of his bail bonds. 15. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.