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2018 DIGILAW 884 (JHR)

Matal Maraiya v. State of Bihar (Now Jharkhand)

2018-04-19

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. Mishra, J. Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants are aggrieved by the impugned Judgment of conviction and Order of sentence dated 31.01.1996, passed by the learned Sessions Judge, Sahibganj, in S.C. No. 393 of 1982, whereby, the appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, they have been sentenced to undergo R.I. for life for the said offence. 3. The prosecution case is based on the fardbeyan of the informant, Jitni Turin, the wife of the deceased Mahadeo Turi, recorded on 8.4.1980 at Barhait hospital, wherein she has stated that on the previous day, i.e., on 7.4.1980, she and her husband were returning from some relationship and they had gone to see their land, situated nearby her house. It is alleged that the accused persons, Chandar Maraiya and Matal Maraiya had constructed their house on the land, for which, there was a dispute in the Court of B.D.O. As soon as they reached near the land, it is alleged that both the accused persons assaulted the husband of the informant by lathi, causing bleeding injuries, whereupon her husband fell down. He was again assaulted in his mouth by lathi, breaking his tooth. Her husband was brought to the hospital for treatment, where the fardbeyan of the informant was recorded, on the basis of which, Barhait P.S. Case No. 04 of 1980, corresponding to G.R. No. 101 of 1980, was instituted for the offences under Sections 325, 323, 307 of the Indian Penal Code, against the accused persons and the investigation was taken up. It appears that the deceased subsequently died and after investigation, the police submitted the charge-sheet under Sections 325, 323, 307 and 302 of the Indian Penal Code. 4. After commitment of the case to the Court of Session, charge was framed against both the accused persons for the offences under Sections 302/34 & 323/34 of the Indian Penal Code, and the upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined eleven witnesses in the case. The Doctor conducting the post-mortem examination and the I.O of the case have not been examined. In course of trial, the prosecution has examined eleven witnesses in the case. The Doctor conducting the post-mortem examination and the I.O of the case have not been examined. Out of the material witnesses examined, P.W.-1 Charan Murmu, P.W.-2 Gurua Marandi, P.W.-3 Kalekini Maraiya, P.W.-4 Krishna Mariaya, and P.W.-8 Munilal Thakur have either turned hostile or have only been tendered by the prosecution. 5. P.W.-5 Jitni Turin is the informant of the case, who has supported the prosecution case, stating that when she had gone to the place of occurrence alongwith her husband, she saw the accused persons digging a pond on her land and thereafter both the accused persons assaulted her husband by lathi, causing injuries in his mouth and nose and also breaking his tooth. She has stated that her husband was brought to the hospital, where he died in course of treatment. She has identified the accused persons in the Court. In her cross-examination, she has admitted that on the day of occurrence, the house of the accused was there on the land where the occurrence had taken place, and she has again stated that the land, on which the accused persons were digging the pond, was in her possession. She has admitted that there was a land dispute between the parties for which the case was also pending in the Court. 6. P.W.-6 Kathia Murmu is not an eyewitness to the occurrence, rather he is only a hearsay witness to the occurrence and P.W.-7 Haradhan Thakur is only a witness to the inquest report on which he has proved his signature, which was marked Exhibit-1. 7. P.W.-9 is Dr. Sarju Prasad, who had treated the deceased while he was injured and had found the following injuries on him :- (1) One abrasion 1”x ¼” on the peak of the nose. (2) One bruise with abrasion 1’x ½” on the middle of upper lip. (3) Dislocation of left lateral incisor tooth with laceration of gum. (4) One bruise ¾” x ½” on the inner surface of left upper limb. (5) One bruise with abrasion on the left side of the back. He has stated that except injury No. 3 which was grievous, all other injuries were simple in nature. He has proved the injury report to be in his pen and signature which was marked Exhibit-2. (5) One bruise with abrasion on the left side of the back. He has stated that except injury No. 3 which was grievous, all other injuries were simple in nature. He has proved the injury report to be in his pen and signature which was marked Exhibit-2. He has stated that these injuries were not sufficient to cause the death. 8. P.W.-10 Sadanand Yadav is a formal witness, who has proved the formal F.I.R., which was marked Exhibit-3 and P.W.-11 Sheo Shankar Das is also a formal witness, who has proved the fardbeyan as Exhibit-4 and the inquest report as Exhibit-5. 9. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. 10. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, even the death of the deceased is not proved in the case. The Doctor, conducting the post-mortem examination on the dead body of the deceased, has not been examined and the post-mortem report has also not been proved in the case. Even the I.O has not been examined in the case and the land dispute between both the parties is an admitted fact. Even though P.W.-5 Jitni Turin has supported the case as an eyewitness to the occurrence, alleging that both the accused persons had assaulted her husband by lathi, but the evidence of P.W.-9 Dr. Sarju Prasad shows that there were only abrasions and bruises on the dead body of the deceased, which were simple in nature, except one dislocation of tooth, which was grievous in nature, and the Doctor has clearly stated that the injuries were not sufficient to cause the death of the deceased. Learned counsel accordingly, submitted that the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. 11. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-5 Jitni Turin has fully supported the prosecution case as an eyewitness to the occurrence. 12. Learned counsel accordingly, submitted that the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. 11. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-5 Jitni Turin has fully supported the prosecution case as an eyewitness to the occurrence. 12. Having heard the learned counsels for both the sides and upon going through the record, we find that though the present case is supported by P.W.-5 Jitni Turin as an eyewitness to the occurrence, but the injuries found on the deceased by P.W.-9 Dr. Sarju Prasad, were only abrasions and bruises, except one dislocation of tooth, and the Doctor has clearly stated that the injuries could not cause the death. The Doctor conducting the post-mortem examination has not been examined in the case, nor the post-mortem report has been proved. Even the I.O has not been examined in the case and this is a clear case in which there is an admitted land dispute between the parties, as it is alleged that the accused persons were having a house on the land in dispute and the case was pending with respect to the land dispute between the parties. We are of the considered view that in the present case even the death of the deceased has not been proved beyond all reasonable doubts, and it is a case in which the accused appellants ought to have been given the benefits of doubt. 13. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 31.01.1996, passed by the learned Sessions Judge, Sahibganj, in S.C. No. 393 of 1982, convicting and sentencing the accused appellants, Matal Maraiya and Chandar Maraiya, for the offence under Sections 302/34 of the Indian Penal Code, are hereby, set aside. The appellants are given the benefits of doubt and they are acquitted of the charge. Both the appellants are on bail, and they are discharged from the liabilities of their respective bail bonds. 14. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.