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2018 DIGILAW 271 (JHR)

Ganesh Ram v. State of Jharkhand

2018-02-01

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : B.B. Mangalmurti, J. This appeal is directed against the judgment of conviction dated 27.02.2006 and order of sentence dated 28.02.2006 passed by 5th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No.55 of 1993 convicting the appellants under Sections 364, 302 and 201 of the Indian Penal Code and sentencing them to rigorous imprisonment for life under Sections 364 and 302 of the Indian Penal Code as also rigorous imprisonment for three years under Section 201 of the Indian Penal Code with condition that all the sentences shall run concurrently. 2. The prosecution case, in short, is that on 16.09.1988 informant-Raj Kumar Paswan, who is a Chowkidar got information about a dead body floating in a well of Ramjanam Singh. He saw the dead body floating into the well which was also smelling. Thereafter, he informed the Police. The Police recovered the dead body from the well and found it decomposed and smelling. One towel (Gamcha) was found wrapped around the neck of the deceased and tongue protruded. It was suspected that after strangulation with the wrapped Gamcha, the dead body was thrown into well in order to conceal the evidence of murder. Accordingly, Police registered a case under Sections 302 and 201 of the Indian Penal Code. After investigation, the Police submitted charge sheet under Sections 364, 302 and 201 of the Indian Penal Code. Thereafter, cognizance was taken and case was committed to the court of Sessions. 3. The prosecution examined six witnesses but no witness on behalf of the defence was examined. 4. Learned counsel appearing on behalf of the appellants submitted that as per the evidence of P.W.2-Jagdish Ram being father of deceased, it would appear that the deceased was kidnapped from the house situated at village Pipradih within Deo Police Station in the District of Aurangabad (now Bihar) but no case was instituted there. The witnesses have deposed that verbally the local Police and Superintendent of Police were informed. He further submitted that the dead body was recovered from a lonely place within the Hariharganj Police Station under Palamau District where the dead body was found floating in a well. The trial court overlooked this situation and convicted on the basis of circumstantial evidence without completing its chain. He further submitted that the dead body was recovered from a lonely place within the Hariharganj Police Station under Palamau District where the dead body was found floating in a well. The trial court overlooked this situation and convicted on the basis of circumstantial evidence without completing its chain. He also submitted that the father and brother did not see even the decomposed dead body of Birju Ram rather identified on the basis of the photographs which has been marked X to X/9 for identification. Even the seizure list and seized cloths were never placed before the court. The court below did not appreciate that apart from these appellants other 8-10 extremists were also present at the time when the deceased was taken away from his house. Therefore, it cannot be established that the murder was caused by these appellants only. P.W.3 Arun Kumar, brother of deceased was minor aged about 10 years at the time of occurrence. Therefore, he may be termed as child witness but the court relied on this witness also. The court below did not consider that previously there was case between family of deceased and the appellants. P.W.4 as per his evidence, was blind since 1984 therefore, how he could recognize the Police in the mob of about 10 peoples. Lastly, he submitted that the deceased was himself a man of criminal background and several cases were instituted against him, and the extremist party have caused the murder of deceased but the appellants have been falsely implicated in this case. 5. Replying to the above contention, learned A.P.P. submitted that it is an admitted position that there was some dispute between the appellants and the family members of deceased prior to this occurrence but these appellants were identified while the deceased was being forcefully taken from the house with declaration that he will be killed. He further submitted that in presence of father and brother of the deceased, a Gamcha was wrapped in the neck of the deceased which was used in strangulation and thereafter his dead body was thrown into a well which was duly identified by the family members after its recovery from the well. He further submitted that in presence of father and brother of the deceased, a Gamcha was wrapped in the neck of the deceased which was used in strangulation and thereafter his dead body was thrown into a well which was duly identified by the family members after its recovery from the well. He also submitted that the trial court considered the circumstances which led to conclusion that these appellants were present not only at the time of kidnapping of deceased from his house but also went after wrapping Gamcha in the neck of the deceased which was also found wrapped in the neck of the dead body. The deceased was also identified through photographs and the cloths and rightly convicted the appellants. 6. On scrutiny of the evidences adduced on behalf of the prosecution, it would appear that the charge was framed under Sections 364, 302 and 201 of the Indian Penal Code against these appellants. P.W. Raj Kumar Ram is a Chowkidar and informant of this case who informed about the floating of dead body in a well. He also proved fardbeyan as Ext. 1. P.W.2 Jagdish Ram, father of the deceased have named these appellants but also stated that apart from them other 10/12 persons were there. In his presence, Gamcha was wrapped in the neck of his son. This witness later on after getting knowledge went to Hariharganj Police Station, District- Palamau and recognized his son through photographs and the cloths. He admitted that there was land dispute with the appellants and they had also caused fire in his house. During cross-examination, he admitted that Police has not enquired about this case. He also admitted that he had not seen the appellants causing murder as well as he had not informed the Police for his kidnapping. When he got information from Harharganj Police then he went there and identified. He also stated that due to fear of party people he has not stated the incident to anyone. He denied the suggestion that his son was a member of MCC and he was concealing himself after keeping articles of MCC. P.W.3 Arun Kumar, brother of deceased also deposed in support of prosecution and corroborated the evidences of his father. He further stated that his brother was kidnapped. He denied the suggestion that his son was a member of MCC and he was concealing himself after keeping articles of MCC. P.W.3 Arun Kumar, brother of deceased also deposed in support of prosecution and corroborated the evidences of his father. He further stated that his brother was kidnapped. They searched from the next morning but could not be traced out and only after 5/6 days got information that he has been killed and were identified through his photographs. He also submitted that at that time he was studying in middle school and was aged about 9/10 years. During cross-examination, he has stated that when he wake up, he saw that 7/8 persons were taking away deceased Birju Ram. This witness denied the suggestion that deceased was involved in 7/8 cases of Loot and Dacoity. 7. In the similar manner, P.W.4 Sarju Ram has also deposed that 8/10 persons have took away his brother after breaking the door of the house. He identified the appellants. He also seen that Gamcha was wrapped in the neck of his brother and the mob was declaring that he will be killed. He deposed that verbally he has informed Deo Police Station. After few days, he could know about the death of his brother when he got information from the Hariharganj Police Station. 8. P.W.5 Dr. K.M. Sah, who had conducted post-mortem on the dead body of the deceased Birju Ram on 17.09.1988, the body was in decomposed position and face was swollen. He found the ante mortem injury like ligature mark around the neck and in his opinion the death was due to Asphyxia as a result of strangulation. The time elapsed since death was more than 72 hours. The postmortem report was marked as Ext.2. 9. P.W.6 Rajnish Kumar, Advocate Clerk through whom fardbeyan in the handwriting of M.A. Khan was marked as Ext.1 and the Page 3-8 of the case diary was marked as Ext.3. 10. On these evidences, it manifest that apart from the appellants, 8/10 other persons were also present at the time when the deceased was taken away from his house on 12.09.1988 but the father and brothers (P.Ws.2, 3 and 4) never gave any written information of kidnapping to the Deo Police Station. It seems that they were simply waiting for the outcome of the situation. It seems that they were simply waiting for the outcome of the situation. After lapse of 5/7 days, they got input from Hariharganj Police Station then they came and identified with the help of photographs and cloths of deceased. They were also not sure that who had committed murder of deceased. P.W.2 Jagdish Ram has deposed in Paragraph 1 that when he came outside his house then was informed that members of party (MCC) took away the deceased after wrapping Gamcha. In reply during cross-examination, has stated that even after raising alarm nobody came forward and due to fear of the party he did not inform the incident to anyone. It means that he was knowing that his son was taken away by the party members and he was also fearful and not informed even to the Police. 11. P.W. 3 is a child witness as he himself admitted that at the time of occurrence he was aged about 9/10 years and was student of a middle school whereas P.W.4 could not recognize the appellants as he was blind at the time of his evidence. The prosecution have examined only interested witnesses (father and brother of the deceased) and no independent witness has been examined in this case nor the Investigating Officer has been examined in this case. Since it is a case of circumstantial evidence, so no eyewitness is available. The conduct of P.W.2, P.W.3 and P.W.4 are that even after kidnapping of deceased no formal F.I.R. or written information was given to the Police Station although all the three witnesses have deposed that mob at the time of kidnapping, have openly declared that he will be killed. When they were informed about the recovery of a body then they came and identified the body on the basis of photographs and cloths in the Police Station. In this situation, the chain of circumstances were not completed and false implication of the accused persons due to admitted enmity between the parties cannot be ruled out. Indeed the conduct of the father and brother of the deceased in not lodging any case is itself very doubtful and it would not at all be in the interest of justice to base the conviction of the accused appellants on the basis of their evidence only. Therefore, the prosecution could not prove the case beyond reasonable doubt. Indeed the conduct of the father and brother of the deceased in not lodging any case is itself very doubtful and it would not at all be in the interest of justice to base the conviction of the accused appellants on the basis of their evidence only. Therefore, the prosecution could not prove the case beyond reasonable doubt. Hence, the appellants deserve the benefit of doubt. 12. Resultantly, this criminal appeal is allowed. The impugned Judgment dated 27.02.2006 and order of sentence dated 28.02.2006 passed by 5th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No.55 of 1993 is set aside. The appellants (Ganesh Ram, Kapildeo Ram and Shankar Giri) are given benefits of doubts and are acquitted of the charges. The appellants are in custody, so they are directed to be released from custody, if not wanted in any other case.