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2018 DIGILAW 947 (JHR)

Dhiren Sardar v. State of Jharkhand

2018-04-28

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants are aggrieved by the Judgment of conviction dated 5th of July, 2008 and Order of sentence dated 9th of July, 2008, passed by the learned Additional Sessions Judge, F.T.C.-II, Jamshedpur, in Sessions Trial No. 32 of 2008, whereby both the appellants have been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, both the appellants have been sentenced to undergo imprisonment for life and fine of Rs. 5000/- each, for the said offence. 3. The prosecution case was instituted on the basis of fardbeyan of the informant Mora Hembrom @ Govind Hembrom, the uncle of the deceased Raj Kishore Hembrom, recorded at his house on Wednesday, on 21.11.2007. He has stated that his nephew Raj Kishore Hembrom, who was a dumper driver and a good cricket player, used to stay in his house, with the widowed sister of the informant. It is stated in the fardbeyan that the accused used to work with his widowed sister at Railway Mal-godown as labourer. The informant has stated that on the Monday evening, (i.e. on 19.11.2007), the deceased Raj Kishore Hembrom had gone out the house and in the early morning on Tuesday at about 4.45 A.M., accused persons Dhiren Sardar and Bipo Sardar came to his house and informed that Raj Kishore Hembrom had died due to consuming excess liquor. Thereafter, the informant along with his brother went to their house and found Raj Kishore dead. The informant brought the dead body of his nephew on a cycle to his house with the help of both the accused persons. He has alleged that there was bleeding injury on the head of the deceased and his tongue was protruding out, and as such he suspected that both the accused persons had committed the murder of the deceased. On the basis of the fardbeyan of the informant, Jugsalai (Bagbera) P.S. Case No. 192 of 2007, corresponding to G.R. No. 2912 of 2007, was instituted for the offence under Sections 302/34 of the Indian Penal Code, against both the named accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. On the basis of the fardbeyan of the informant, Jugsalai (Bagbera) P.S. Case No. 192 of 2007, corresponding to G.R. No. 2912 of 2007, was instituted for the offence under Sections 302/34 of the Indian Penal Code, against both the named accused persons, 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, charge was framed against both the accused persons, for the offence under Sections 302/34 of the Indian Penal Code, and upon the accuseds’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 14 witnesses were examined on behalf of the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. Out of the material witnesses examined, P.W.-1 Manoj Patro, P.W.-2 Mangal Hansda, P.W.-3 Lakhan Soren, P.W.-4 Saheb Sinku, P.W.-5 Pathar Singh Sardar, P.W.-6 Laxman Sardar, P.W.-7 Karu Soren and P.W.-12 Jasmi Hembrom, who is the sister of the informant, have not supported the prosecution case and have stated that they have no knowledge about the occurrence, though, some of these witnesses had seen the dead body of the deceased. P.W.-8 Chandra Patro had only stated that he had seen the dead body of the deceased and he was informed by the informant that accused Dhiren Sardar had committed the murder, but in his cross-examination, he has clearly stated that he had no personal knowledge about the occurrence. Similarly, P.W.-9 is Bahadur Mardi, is another hearsay witness, who has stated that he had seen the dead body of the deceased and has stated that the police was informed about the occurrence and the post-mortem of the dead body was also conducted. He has stated that he was informed by the informant that Diren Sardar had committed the murder of the deceased. In his cross-examination, this witness has clearly stated that he had no personal knowledge about the occurrence. 6. P.W.-10 Mora Hembrom @ Govind Hembrom is the informant of the case. This witness has stated that the deceased Raj Kishore used to live with his sister Jasmi Hembrom. He was a dumper driver and a good player of the cricket. In his cross-examination, this witness has clearly stated that he had no personal knowledge about the occurrence. 6. P.W.-10 Mora Hembrom @ Govind Hembrom is the informant of the case. This witness has stated that the deceased Raj Kishore used to live with his sister Jasmi Hembrom. He was a dumper driver and a good player of the cricket. He has stated that Jasmi Hembrom used to work at Railway Mal-godown, where both the accused Diren Sardar and Bipo Sardar were also working. Accused Dhiren Sardar, had called the deceased Raj Kishore along with him and he suspects that Raj Kishore was killed by the accused persons. After killing Raj Kishore, Dhiren Sardar called this witness to his house, where he saw the dead body of the deceased with bleeding injury on his head and the tongue protruding out. Dhiren Sardar also threatened him to take away the dead body, otherwise he would also be killed. Out of fear, he brought the dead body of the deceased to his house, and thereafter the police was informed and the post-mortem examination was conducted. This witness has further stated that both the accused had committed the murder of deceased Raj Kishore, as the accused Dhiren Sardar had illicit relationship with the sister of this witness, which was opposed by the deceased Raj Kishore. He has identified the accused persons in the Court. He has also stated that he had given the fardbeyan to the police, on which, he had put his signature, which he identified, and the same was marked Exhibit-1. In his cross-examination, he has admitted that he had not informed the police about the illicit relationship of his sister and the accused Dhiren Sardar and he had not seen as to how the deceased was injured. He has stated that he had brought the dead body from the house of accused Dhiren Sardar in the morning at about 3.30 A.M. and had kept the dead body in his house. He had also informed the police that Dhiren Sardar had threatened him to take away the dead body from his house and he has denied the suggestion to have given the statement before the police that the deceased had died due to excessive drinking. He had also informed the police that Dhiren Sardar had threatened him to take away the dead body from his house and he has denied the suggestion to have given the statement before the police that the deceased had died due to excessive drinking. He has admitted in his cross-examination that the police was called by the villagers and has denied the suggestion that when the villagers called the police, he had falsely implicated both the accused persons in this case. 7. P.W.-11 Chaitanya Murmu is the neighbour of the informant. He has stated that on the date of occurrence, the deceased Raj Kishore was killed by Dhiren Sardar and Bipo Sardar and in the morning at about 3.30 A.M. when there was a noise of crying from the house of the informant, he went there and saw the dead body of the deceased in the house on the bed with bleeding injury on his head and the tongue protruding out. The informant informed him that he had brought the dead body of the deceased from the house of Dhiren Sardar and Bipo Sardar, where he had found the deceased dead. He has also stated that the informant informed him that upon the threats given by both the accused persons, he had brought the dead body. Thereafter, the police was informed. He has identified the accused persons in the Court. This witness has also stated that the occurrence had taken place due to illicit relationship between Dhiren Sardar and the sister of the informant, which was being opposed by the deceased. In his cross-examination, this witness clearly stated that he had not seen the occurrence. 8. P.W.-13 is Dr. Niranjan Minz, who had conducted the post-mortem examination on the dead body of the deceased on 22.11.2007, and found the ante-mortem injures on the dead body, including one lacerated wound on the head, causing blood clots in both sides of the brain and also causing contusion in the brain. He has stated that the death was caused due to the head injuries, caused by hard and blunt substance. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2. 9. P.W.-14 Hare Ram Sharma is the I.O. of the case. This witness has stated that on 21.11.2007 he was instructed on wireless to proceed towards the place of occurrence. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2. 9. P.W.-14 Hare Ram Sharma is the I.O. of the case. This witness has stated that on 21.11.2007 he was instructed on wireless to proceed towards the place of occurrence. He went there and found the dead body of the deceased and recorded the fardbeyan of the informant, which he proved to be in his pen and signature, and was marked Exhibit-3. He has also proved the endorsement on the fardbeyan and the formal F.I.R, which were marked Exhibits-3/1 and 3/2 respectively. He took over the charge of investigation, recorded the statements of the witnesses and inspected the place of occurrence, where the dead body was found. From his evidence it appears that the dead body was found on a bed situated in the inner verandah of the house, adjacent to the courtyard, and not in the outer verandah or room of the house. He has stated that he arrested both the accused persons and he also inspected the house of the accused persons, where he did not find any incriminating circumstance. He received the post-mortem report and submitted the charge-sheet in this case. In his cross-examination, this witness has stated that he had not seized the cycle, nor had he searched for the blood stains on the cycle. He had not seized any blood stained cloths of the deceased. He has also stated that during investigation, none of the witness informed him that they had seen the dead body being brought on the cycle to the house of the informant. He had not found any blood stains either in the way to the house of the accused persons, or at the house of the accused persons, and there was no eyewitness to the occurrence. He has denied the suggestion of making the faulty investigation. 10. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused have denied the evidence against them. On the basis of the evidence on record, both the accused persons were found guilty, convicted and sentenced for the offence, as aforesaid by the Trial Court below. 11. 10. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused have denied the evidence against them. On the basis of the evidence on record, both the accused persons were found guilty, convicted and sentenced for the offence, as aforesaid by the Trial Court below. 11. 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, there is no eyewitness to the occurrence of murder, and the dead body of the deceased was found in the house of the informant and not in the house of the appellants. No blood stain or any incriminating circumstance was found at the house of the accused persons. It is further submitted that it is also an admitted fact that no one had seen the dead body of the deceased being taken to the house of the informant from the house of the accused persons, and in the facts of the present case, the false implication of the accused persons by the informant, in whose house the police found the dead body with ante-mortem injuries, cannot be ruled out. Learned counsel, accordingly, submitted that the prosecution has failed to bring home the charge against both the accused persons beyond all reasonable doubts. 12. Learned counsel for the State on the other hand has opposed the prayer, submitting that the prosecution case is fully supported by the informant P.W.-10 Mora Hembrom @ Govind Hembrom, who has stated that he had seen the dead body at the house of the accused persons and upon the threats given by them to take away the dead body from their house, he had brought the dead body of the deceased to his house, and he has also stated that the occurrence had taken place due to illicit relationship between the sister of the informant and the accused Dhiren Sardar. Same is the evidence of P.W.-11 Chaitanya Murmu, though he is the hearsay witness on all these points. Learned counsel further submits that the oral evidence of these witnesses is fully corroborated by the medical evidence of P.W.-13 Dr. Same is the evidence of P.W.-11 Chaitanya Murmu, though he is the hearsay witness on all these points. Learned counsel further submits that the oral evidence of these witnesses is fully corroborated by the medical evidence of P.W.-13 Dr. Niranjan Minz, and the post-mortem report proved by him as Exhibit 2, who had found the ante-mortem bleeding injuries on the head of the deceased, caused by hard and blunt substance and has stated that the death was caused due to head injuries. Learned counsel, accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the learned Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that the only evidence to the fact that the dead body of the deceased was found at the house of the accused persons is the evidence of P.W.-10 Mora Hembrom @ Govind Hembrom, who is informant in this case. Though he has stated that he had brought the dead body due to threats given by the accused persons, but this appears to be an improvement, later on made by him, as no such statement was made in the F.I.R. Even the motive behind the occurrence, i.e., the alleged illicit relationship between the accused Dhiren Sardar and his sister, has come only for the first time in the evidence of the informant P.W.-10 Mora Hembrom @ Govind Hembrom, and this fact was also not stated in the F.I.R. It is absolutely very strange as to why the informant shall bring the dead body of the deceased from the house of the accused persons to his house. Had the dead body of the deceased been brought from anywhere, it would have been kept at the outer verandah or room of the house, and not in the inner verandah, but the dead body was found on a bed in the inner verandah of the house, adjacent to the courtyard. The evidence of the I.O. also shows that he had found no blood stains or any incriminating circumstance in the house of the accused persons. The evidence of the I.O. also shows that he had found no blood stains or any incriminating circumstance in the house of the accused persons. Thus, the fact that the informant, who is a highly interested witness, had seen the dead body of the deceased at the house of the accused persons, appears to be very doubtful and in absence of any corroborating evidence of any independent eyewitness to show that the dead body of the deceased was seen at the house of the accused persons, or being brought from the house of the accused persons to the house of the informant, the false implication of the accused persons by the informant, in whose house, the dead body was found, cannot be ruled out. We are of the considered view that on the basis of the evidence on record, the prosecution has miserably failed to bring home the charge against both the accused persons beyond all reasonable doubts. 14. For the foregoing reasons, the impugned Judgment of conviction dated 5th of July, 2008 and Order of sentence dated 9th of July, 2008, passed by the learned Additional Sessions Judge, F.T.C.-II, Jamshedpur, in Sessions Trial No. 32 of 2008, convicting and sentencing the appellants for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, both the appellants Dhiren Sardar and Bipo Sardar are found not guilty and they are acquitted of the charge. Both the appellants are in custody undergoing the sentence. Let them be released and set at liberty forthwith, if their detention is not required in any other case. 15. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.