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2023 DIGILAW 1191 (JHR)

Tiru Birhor, S/o Kastu Birhor v. State Jharkhand

2023-10-03

NAVNEET KUMAR, SUJIT NARAYAN PRASAD

body2023
JUDGMENT : Sujit Narayan Prasad, J.: 1. The instant appeal, filed under Sections 374 (2) of the Code of Criminal Procedure, is directed against the judgment of conviction dated 29.07.2015 and order of sentence dated 04.08.2015 passed by the learned Additional Sessions Judge, Simdega in Sessions Trial Case No.45 of 2012, whereby and whereunder, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and a fine of Rs.5,000/-and in case of default of payment of fine, he has further been directed to undergo simple imprisonment for four months and 60 % of the fine deposited will go to the informant namely, Jatri Birhor, and all the sentences awarded to them shall run concurrently. 2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of prosecution case, as per fardbeyan of informant, which reads as under: 3. As per the fardbeyan of the informant-Jatri Birhor, wife of late Urha Birhor that on 17.10.2011 at about 10.00 O' Clock night, her husband, namely, Urha Birhor, (the deceased) after taking dinner was arguing with his cousin brother, namely, Tiru Birhor, (the appellant herein) outside of her house and in course of arguing, the matter was aggravated and at that time, she was in her courtyard. After hearing noise at her door, she came out and saw that the accused assaulted her husband from sharp side of tangi on his head, due to which her husband fell down and thereafter, accused assaulted her husband on his back and shoulder. Upon which, her husband sustained injury and blood started flowing from his head and as such, he died. Thereafter, she raised alarm and on raising alarm, nearby people came there but before their arrival, the accused along with tangi had fled away towards the forest. 4. She further alleged that without any reason and motive, the accused killed her husband by axe (tangi). 5. On the basis of fardbeyan of informant, Simdega P.S. Case No.126/2011 dated 18.10.2011 was registered against the accused person under Section 302 of the IPC and investigation was started. 6. 4. She further alleged that without any reason and motive, the accused killed her husband by axe (tangi). 5. On the basis of fardbeyan of informant, Simdega P.S. Case No.126/2011 dated 18.10.2011 was registered against the accused person under Section 302 of the IPC and investigation was started. 6. After completion of investigation, the Investigating Officer submitted charge-sheet against the accused person, namely, Tiru Birhor under Section 302 of the Indian Penal Code and the accused person was sent up for trial. 7. Thereafter, the cognizance of the offence was taken against the accused person and the case was committed to the Court of Sessions. The charge was framed against the accused person, who had pleaded not guilty and claimed to be tried. 8. In course of trial, the prosecution has examined altogether 5 witnesses including one Court witness, i.e., P.W.1-Jatri Birhor, P.W.2-Ram Kishun Birhor, P.W.3-Dhurandar Rai, P.W.4-Rohir Birhor and C.W.1-Dr. Dayanand Saraswati. 9. The trial Court, after concluding the evidence of prosecution, recorded the statement of the accused person under Section 313 of the Criminal Procedure Code, in which, he has denied from the prosecution evidence and claimed himself to be innocent and found the charge levelled against the appellant proved. 10. Accordingly, the appellant has been found guilty as such convicted and sentenced vide impugned judgment of conviction dated 29.07.2015 and order of sentence dated 04.08.2015, which is the subject matter of instant appeal. 11. The aforesaid judgment of conviction and order of sentence is under consideration before this Court: “Whether the trial Court, while convicting the accused person, has committed any illegality or not?” 12. Mrs. Amrita Banerjee, learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence suffers from infirmity on the following grounds: (I). The learned trial Court has based the conviction on the basis of the testimony of P.W.1 who has been considered to be an eye witness but P.W.1 cannot be considered to be an eye witness if her testimony will be taken into consideration in entirety. P.W.1, although, has stated in cross-examination-in-chief that she had seen the commission of crime of assault being given by the accused upon the deceased. P.W.1, although, has stated in cross-examination-in-chief that she had seen the commission of crime of assault being given by the accused upon the deceased. But, P.W.1, in her cross-examination has not remained consistent with the said version, rather, she has deposed that at the time of commission of assault by the appellant upon the deceased, she was sleeping and when she came out, then she had seen the appellant fleeing away. The contention has been made that if the testimony of P.W.1 will be taken into consideration in entirety, then it cannot be said that she is an eye witness. (II). The learned trial Court in the impugned judgment has relied upon the testimony of P.W.1 and considering her testimony to be trustworthy, has made the said testimony to be the sole basis of the conviction, but while doing so, the learned trial Court has committed patent illegality in not considering the cross-examination of P.W.1, wherein, she herself has discredited her version, what she has stated in her examination-in-chief about witnessing the commission of crime. (III). The Investigating Officer, however, has supported the prosecution version but he has deposed that he has not seized any incriminating material from the place of occurrence. The learned trial Court, while considering the testimony of P.W.1 and taking it together with the testimony of the Investigating Officer, has believed the prosecution version and accordingly, convicted the appellant under Section 302 of the IPC. 13. Learned counsel for the appellant, on the aforesaid premise, has submitted that it is a case where it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubts, rather, as per the testimony of P.W.1, which cannot be said to be trustworthy, the impugned judgment needs to be interfered with. 14. Per Contra, Mr. Pankaj Kumar, learned Public Prosecutor appearing for the respondent-State has defended the impugned judgment by taking the following grounds:- (i) The learned trial Court, while accepting the version of P.W.1 more particularly by taking into consideration the testimony as she has disclosed in her examination-in-chief, wherein, the prosecution version has fully been supported, hence, it cannot be said that while accepting the said version, the learned trial Court has committed any error. (ii) The Investigating Officer, P.W.3 corroborates the testimony of P.W.1 and by taking together the testimony of P.W.1 and P.W.3, if the prosecution version has been believed by the learned trial Court, which cannot be said to suffer from an error, hence, the instant appeal is having no merit and the impugned judgment of conviction and order of sentence suffers from no infirmity. 15. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses and the finding recorded by learned trial Court. 16. This Court, before going into the legality and propriety of the impugned judgment of conviction/sentence, deems it fit and proper to refer the testimony of prosecution witnesses. 17. P.W.1-Jatri Birhor, the informant and wife of the deceased during her examination-in-chief has deposed that on the date of occurrence at about 10 O'clock night, the accused assaulted with Tangi on head, back and shoulder of her husband, namely, Urha Birhor and killed him and thereafter, her fard bayan was recorded by the local police and after reading and finding the same true, she put her thumb impression over it. 18. In Para-2 of her cross-examination, she has deposed that the accused is her cousin brother-in-law(devar) and she has further stated that no land dispute was there in between the accused and her husband. 19. In Para-3 of her cross-examination, she has deposed that at the time of occurrence, the accused and her husband were eating and drinking on the road side. At the time of occurrence, she had slept with her daughter and on hearing alarm, she came out from her house and saw that the accused was fleeing away. 20. P.W.2-Ram Kishun Birhor has been declared hostile by the prosecution and he has denied recording of his statement by the Police in the course of investigation of the case. 21. P.W.3-Dhurandar Rai, is the Investigating Officer, who in course of his investigation, recorded the statement of the witnesses in the case diary, inspected the place of occurrence, prepared the Inquest report, sent the dead body for postmortem examination and thereafter, received the postmortem report and submitted the charge sheet against the accused. 22. During his evidence, he has proved the fardbeyan as Ext1, formal FIR as Ext-2 and Inquest Report as Ext-3. 23. 22. During his evidence, he has proved the fardbeyan as Ext1, formal FIR as Ext-2 and Inquest Report as Ext-3. 23. In para-7 of his cross-examination, he has stated that there was no dispute in between the accused and the deceased prior to the occurrence as also he has not found any land dispute pending between them. 24. In Para-8 of the cross-examination, he has stated that he has not seized any weapon used in the alleged occurrence and at the place of occurrence, he had not found any electric light there and the house of the accused is situated beside the house of the deceased. 25. C.W.1-Dr. Dayanand Saraswati, had conducted the postmortem examination on the dead body of Urha Birhor and found the following external injuries on the dead body:- (I) Deep cut wound left perital bone size about 4-1/2"x2"x3-1/2" all layers of scalp cut, margin of wound sharp cut, one end of perital bone fractured and elevated and another end of frontal perital bone deep into the cranial cavity injuring meninges and brain matter. (II) Deep cut wound over left shoulder joint-size about 3"x2-1/2"x3" cut margin is sharp muscles of shoulder joint of left side exposed. (III) Deep cut wound over right side of back 1-1/2" below right inferior angle of scapula size about 3"x 1-1/2"x 6-1/2" and 10th 11th ribs cut. Internal Examination: Liver torn, small and large intestine ruptured, when abdominal cavity opened blood clots and liquid in abdominal cavity. In the brain-tissue torn and in the cranial blood clots in large quantity present. Weapon used:-Heavy hard sharp edged weapon and as per the opinion of the doctor, the cause of death was due to haemorrhage and shock leading to cardio respiratory failure. During his evidence he has proved the postmortem report as Ext-4. 26. In Para-2 & 3 of his cross-examination, he has stated that he has not mentioned the time of postmortem examination and the posture of dead body in his postmortem report. He has also stated that he cannot say about the weight of weapon nor the exact size of the weapon. 27. It appears from the impugned judgment that the learned trial Court has based the conviction by considering the testimony of P.W.1, therefore, it needs to be considered the testimony of P.W.1 in order to assess as to whether the P.W.1 can be said to be an eye witness. 28. 27. It appears from the impugned judgment that the learned trial Court has based the conviction by considering the testimony of P.W.1, therefore, it needs to be considered the testimony of P.W.1 in order to assess as to whether the P.W.1 can be said to be an eye witness. 28. It is evident from the testimony of P.W.1, as would appear from examination-in-chief, wherein, she has deposed that the appellant has assaulted her husband with tangi on head, back and shoulder, due to which, he died. But, in cross-examination, she has deposed that at the time of occurrence, she was sleeping along with her daughter and she, after hearing noise, came out from her house and had seen that the accused person was fleeing away. 29. This Court, in view of the testimony, so recorded of P.W.1 in cross-examination, in which, she has deposed that she was sleeping at the time of occurrence, hence, the same creates doubt so far as the testimony of P.W.1 regarding witnessing the commission of crime, as she has deposed in examination-in-chief. 30. It appears from the impugned judgment that on the basis of testimony of P.W.1 which has been considered to be reliable witness having said to be corroborated by the testimony of the Investigating Officer, the judgment of conviction has been passed. 31. Learned trial Court has also taken aid of the judgment rendered by the Hon’ble Apex Court in the case of Chako @ Aniyan Kunju & Ors. Vrs. State of Kerala, reported in 2004 (1) Crimes Page-383-SC. 32. There is no dispute about the aforesaid position, wherein, the Hon’ble Apex Court has been pleased to hold that the conviction can be based on the testimony of sole witness if he is wholly reliable. 33. Therefore, the law is well settled that even on the basis of testimony of sole witness, if it is trustworthy, the conviction can be there. But, the trustworthiness of the said testimony, is the requirement for its consideration in order to come to the conclusion that the testimony of such witness, can be said to be trustworthy. 34. The trustworthy witness will be said to be a witness if there is no major contradiction both in examination-in-chief and cross examination. 35. But, the trustworthiness of the said testimony, is the requirement for its consideration in order to come to the conclusion that the testimony of such witness, can be said to be trustworthy. 34. The trustworthy witness will be said to be a witness if there is no major contradiction both in examination-in-chief and cross examination. 35. Here, the P.W.1 has deposed in examination-in-chief that she had seen the commission of crime and as such, based upon the said testimony, as recorded in examination-in-chief, the learned trial Court has considered the P.W.1 as an eye witness. 36. But, the learned trial Court has failed to consider the deposition which has been recorded in her cross-examination, wherein, she has deposed that she was sleeping at the time of commission of crime along with her daughter. After making noise, she came out and then, P.W.1 had seen fleeing away the accused person. 37. Therefore, according to our considered view, the testimony of P.W.1 cannot be said to be trustworthy so as to be said to be reliable witness for convicting the accused person. If the testimony of P.W.1 itself has been held to be untrustworthy, then there is no question of its corroboration from the testimony of Investigating Officer. 38. The Hon’ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454 , wherein, at paragraph-22, it has been held as under:- “22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.” 39. Likewise, the Hon’ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98 , has held at paragraph-26 as under:- “26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt.” 40. Further, it is the settled proposition of law that if the result of cross-examination of prosecution witnesses, accused could establish the probability of his defence and if probability was established by accused, it would really entitle him to the benefit of doubt, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Bhikam Saran Vrs. State of U.P., reported in (1953) 2 SCC 560, wherein, at paragraph-16, it has been held as under:- “16. It is significant to observe that the appellant led no evidence in defence but merely relied upon the evidence of the prosecution witnesses in order to establish his defence. He had not to affirmatively establish his defence in the manner in which the prosecution had to establish its case. If as the result of his cross-examination of the prosecution witnesses he could establish the probability of his defence it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability would prevent the prosecution case being established beyond reasonable doubt.” 41. If as the result of his cross-examination of the prosecution witnesses he could establish the probability of his defence it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability would prevent the prosecution case being established beyond reasonable doubt.” 41. Further, the principle of ‘benefit of doubt’ belongs exclusively to criminal jurisprudence. The pristine doctrine of ‘benefit of doubt’ can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96 , wherein, it has been held at paragraph-7 as under:- “7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath “as a matter of abundant caution”. Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused.” 42. Likewise, the Hon’ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph-32 and 33 has held as under:- “32. Likewise, the Hon’ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph-32 and 33 has held as under:- “32. ------The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt. 33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, “witnesses are the eyes and ears of justice.-----’’ 43. We, on appreciation of the testimony of P.W.1 since has come to the conclusion that the testimony of P.W.1, cannot be considered to be an eye witness. 44. The learned trial Court has based the conviction by considering the testimony of P.W.1 to be an eye witness, hence, the impugned judgment of conviction, according to our considered, cannot be said to be justified. 45. Such finding is on the basis of the fact that the criminal jurisprudence requires that the charge is to be proved beyond all reasonable doubts. 46. P.W.1, since, has been considered by this Court not to be an eye witness, therefore, it cannot be said that the prosecution has been able to prove charge beyond all reasonable doubts, as the learned trial Court has passed the judgment of conviction/sentence by considering the testimony of P.W.1 to be an eye witness. 47. We, on the entirety of the facts and circumstances and as per the discussion made hereinabove, are of the view that the impugned judgment of conviction/sentence, needs to be interfered with. 48. Accordingly, the judgment of Conviction dated 29.07.2015 and order of Sentence dated 04.08.2015 passed by the Additional Sessions Judge, Simdega in S.T. No.45 of 2012, are hereby quashed and set aside. 49. In the result, the instant appeal stands allowed. 50. In consequence thereof, the appellant, namely, Tiru Birhor is discharged from his criminal liability and directed to be released forthwith from judicial custody in connection with S.T. No.45 of 2012, if not required in any other cases. 51. Let this order/judgment be communicated forthwith to the Court concerned along with the Lower Court Records.