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2018 DIGILAW 2810 (JHR)

Birsa Sanga v. State of Bihar (Now Jharkhand)

2018-12-20

H.C.MISHRA, H.C.MISHRA, RATNAKER BHENGRA, RATNAKER BHENGRA

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JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 13th August 1996, and Order of sentence dated 21.8.1996, passed by the learned Additional Judicial Commissioner, Khunti, in S.T. No.258 of 1995, whereby the appellant has been found guilty and convicted for the offences under Sections 302/34 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Sections 302/34 of the Indian Penal Code, and R.I. for seven years for the offence under Section 201 of the Indian Penal Code, and both the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Mako Sanga, the son of the deceased Ram Sanga, recorded on 8.01.1995, at the place of occurrence in Guchu forest, situated in P.S. Karra, in the then District of Ranchi, wherein, it is stated that the father of the informant had gone to Lodhama market on 2.1.1995, but as he did not return, he was searched. There was no clue of his father till 5.1.1995, and accordingly, the missing report was given in the Police Station, and he was also searching his father. One Etwa Pahan informed him that on the day of market, i.e., on 2.1.1995 itself, he had taken haria (the local wine made of rice), with the father of the informant, and thereafter he had returned back. Subsequently, the informant was also informed that they had taken haria, at the place of Hissi Mundain, and the accused Birsa Sanga, Chanda Sanga and Ram Sanga were also there, and there was an altercation among them also. On 7.1.1995, the dead body of the deceased was found in decomposing stage, with injuries by sharp cutting weapons, and maggots were also on the dead body. It is further stated that in the month of October, last year, several persons had died in the village due to diarrhea, and since his father was a Pahan, the villagers were accusing that he had not done the rituals properly, due to which, the calamity had befallen them, and there was also a meeting on 23.10.1994, in which, also, these accused persons had taken up the quarrel with his father. Claiming, that these accused persons had committed the murder of his father for the said motive, the fardbeyan was given by the informant, on the basis of which, Karra P.S. Case No.8 of 1995, corresponding to G.R. No.16 of 1995 was instituted against unknown, for the offences under Sections 302, 201, 120-B 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 farmed against the accused persons for the offences under Sections 302 / 34 and 201 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. It may be stated that two accused persons, namely, the appellant Birsa Sanga and the co-accused Ram Sanga had faced the trail, and the co-accused Ram Sanga was acquitted by the Trial Court below, whereas the appellant has been convicted and sentenced as aforesaid. 5. In course of trial, 12 witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased, as also the I.O. of the case. Out of material witnesses examined, P.W.-2 Hissi Mundain, at whose place, it is alleged that the deceased and the accused persons had taken haria on the market day, when they were last seen together, has turned hostile, and has not supported the prosecution case. 6. Admittedly, there is no eyewitness to the occurrence, and the case rests upon the alleged confessional statement of the accused Birsa Sanga, leading to the recovery of two blood stained tangies from the place of occurrence. In this connection, there are evidences of P.W.-4 Mako Sanga, the informant and the son of the deceased, P.W.-5 Prem Prakash Sanga, the other son of the deceased, P.W.-7 Birsingh Tirky, the son-in-law of the deceased, P.W.-8 Sushil Sanga, the cousin of the deceased, and P.W.-9 Gabriel Herenj, who have deposed that in their presence and in the presence of the police, this accused had made self-incriminating confessional statement, and on the basis of that confessional statement, blood stained soil and two blood stained tangies were recovered from near the place of occurrence. 7. 7. P.W.-9 Gabriel Herenj has also stated that this accused had made extra-judicial confession before him and Birsingh Tirky, but P.W.-7 Birsingh Tirky has not stated anything in his evidence regarding any such extra-judicial confession made by this accused before them. P.W.-10 Nanki Sanga, who is the wife of the deceased, has also stated that such extra-judicial confession was made by the accused. However, the evidence of P.W.-11 Karam Pal Oraon, the I.O. of the case, belies all these witnesses on this point, stating in his evidence, that he had apprehended the accused Birsa Sanga and other co-accused only on the secret information. He has not stated anything about any such extra-judicial confession, which was informed by the witnesses to him. We have also looked into the case diary, in the interest of justice, which shows that none of these witnesses had given any statement before the police about any such extra-judicial confession made by the accused before them. It is thus clear, that these witnesses have made improvements in the Court, over their earlier versions, and this piece of evidence cannot be taken into consideration. 8. The other witnesses, P.W.-1 Diggi Munda and P.W.-3 Ruiya Sanga have not stated anything against this accused. P.W.-1 Diggi Munda has stated that she had only seen the deceased taking haria on the day of market, along with the accused persons. She has not deposed about any quarrel between them. P.W.-3 Ruiya Sanga is only a seizure list witness, of the seizure of a blood stained rope from the house of the other co-accused. 9. P.W.-12 Dr. Sudhir Kumar Shandilya had conducted the post-mortem examination on the dead body of the deceased on 8.1.1995, and had found three ante-mortem incised wounds on the dead body, caused by sharp cutting and heavy weapon, such as, may be tangi. Two of them were on the vital parts of the body, i.e., the head and neck, and one injury was found on the hand. He has stated that the dead body was in the decomposing stage. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext.-8. 10. P.W.-11 Karam Pal Oraon is the I.O. of the case. He has stated that the dead body was in the decomposing stage. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext.-8. 10. P.W.-11 Karam Pal Oraon is the I.O. of the case. Apart from proving the necessary documents, such as, fardbeyan, formal FIR, some seizure lists, etc., it is apparent from his evidence that he had recovered two blood stained tangies and the blood stained soil, when he had visited the place of occurrence for inspection. Though he has not initially stated that such recoveries were made on the basis of the confessional statement of this accused, but subsequently, he has stated that those recoveries were made on the basis of the confessional statement of this accused. 11. We have looked into the seizure list relating to the seizure of blood stained tangies and blood stained soil, which has been proved as Ext.-5 in the case. This seizure list shows that the recovery was made on 8.1.1995 itself, i.e., the day of the fardbeyan, and neither it is stated in the seizure list that recoveries were made on the basis of the confessional statement of the accused Birsa Sanga, nor it bears the signature or the thumb impression of any accused. 12. Thus, the whole prosecution case, that rests only upon the recovery on the basis of the alleged confessional statement of this accused, falls flat. We are of the considered view that only on the basis of this evidence, the accused could not have been convicted and sentenced for the offences charged. As held earlier, the evidence regarding the alleged extra-judicial confession made by the accused before some witnesses are only improvements made by them in the Court, over their earlier versions, and this piece of evidence cannot be taken into consideration. Admittedly, there is no other evidence on record against this accused. As such, it is a fit case, in which, the accused Birsa Sanga, ought to have been acquitted of the charges, giving him the benefits of doubt, and the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 13. As such, it is a fit case, in which, the accused Birsa Sanga, ought to have been acquitted of the charges, giving him the benefits of doubt, and the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 13. For the foregoing reasons, the impugned Judgment of conviction dated 13th August 1996, and Order of sentence dated 21.8.1996, passed by the learned Additional Judicial Commissioner, Khunti, in S.T. No.258 of 1995, convicting and sentencing the appellant Birsa Sanga for the offences under Sections 302/34 and 201 of the Indian Penal Code, are hereby, set-aside. Consequently, the appellant Birsa Sanga is given the benefits of doubt, and he is acquitted of the charges. The appellant Birsa Sanga is on bail, and he is discharged from the liabilities of his bail bond. 14. This appeal is accordingly, allowed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with a copy of this Judgment.