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2023 DIGILAW 43 (JHR)

Hari Hessa v. State of Bihar [Now Jharkhand]

2023-01-11

SUBHASH CHAND, SUJIT NARAYAN PRASAD

body2023
JUDGMENT : Sujit Narayan Prasad, J.: This Court, after having heard learned Amicus for the appellants and learned A.P.P for the State, perused the materials available on record as also the judgment of conviction and order of sentence and closely scrutinized the deposition of witnesses recorded by learned trial Court, is passing order/judgment in open Court in presence of learned Amicus Curiae and learned A.P.P. 2. At the outset, it has been submitted by Mr. Chanchal Jain, that he has been appointed as Amicus Curiae by an order passed by the Co-ordinate Bench of this Court, as would appear from order dated 11.04.2019. Mr. Chanchal Jain, learned Amicus Curiae is present and addressed the Court on the issue of merit. It has further been submitted that two of the appellants, namely, Renso Hessa and Birendra Hessa, appellant Nos. 2 and 3 respectively, have died during pendency of the instant appeal. It has been submitted that an order was passed by the Coordinate Bench of this Court on 13.03.2019 whereby and whereunder the Secretary, Jharkhand High Court Legal Services Committee has been directed to ascertain from the appellants through the Para Legal Volunteer whether they wish for legal aid. It further appears from the order dated 11.04.2019 that a report from the Jharkhand High Court Legal Services Committee has been received wherein it has been stated that the appellants Renso Hessa and Birendra Hessa have died. Along with this report an application from the appellant no. 1 namely, Hari Hessa is attached which shows that appellant no. 1 desires for the legal aid. In the aforesaid facts, Mr. Chanchal Jain, the learned A.C. to the learned Advocate-General was appointed as Amicus to argue this criminal appeal on behalf of the appellant no. 1. There is no application for suing this criminal appeal through the legal representative of the appellant Nos. 2 and 3 and, as such, the appeal stands abated so far as appellant Nos. 2 and 3 are concerned. 3. 1. There is no application for suing this criminal appeal through the legal representative of the appellant Nos. 2 and 3 and, as such, the appeal stands abated so far as appellant Nos. 2 and 3 are concerned. 3. The instant appeal has been preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the Judgment of conviction dated 25th June, 1994 and Order of sentence dated 27th June, 1994, passed by 1st Additional Sessions Judge, Chaibasa, in S.T. No.168 of 1992, by which the appellants, named above, have been found guilty and convicted for the offence punishable under Sections 302/34 and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302/34 I.P.C and to undergo rigorous imprisonment for two years for the offence punishable under Section 201 I.P.C. Both the sentences were directed to run concurrently. The legality and propriety of the judgment of conviction and order of sentence is under challenge before this Court under its appellate jurisdiction. 4. 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 institution of prosecution case. As per written report dated 18.02.1992 of one Jogeshwar Hesa (P.W. 4), Munda of Amjora village, the deceased-Burhan Singh Hessa of village Amjora, who was a Railway employee, had come to his village on 13.02.1992 to celebrate the festival of Mage. On 16.02.1992 at about 9.00 p.m. he (deceased) reached to the house of Birendra Hessa @ Biren (appellant no. 3, now dead) where he took food and drink along with said Birendra Hessa @ Biren. On enquiry from the people it was known to informant that there was some altercation and exchange of abusive language in between Burhan Singh Hessa and accused persons namely, Birendra Hessa, Hari Hessa, Renso Hessa @ Dodi Ekka. On the next day morning i.e., on 17.02.1992, the family members of the deceased started searching the deceased but he could not be traced out, therefore, the family members of the deceased informed the informant who is the Munda of the village. On the next day morning i.e., on 17.02.1992, the family members of the deceased started searching the deceased but he could not be traced out, therefore, the family members of the deceased informed the informant who is the Munda of the village. The informant along with Punchs (villagers) went to search the house of Birendra Hessa and on search, they found blood stain on the distance of 50 yards away the west side of the house of accused persons, namely, Birendra Hessa, Hari Hessa, Renso Hessa @ Dodi Ekka, which raised suspicion that Burhan Singh Hessa had been killed. It was further found by the informant that the traces of blood continued up-to 500 yards and blood-stained Ganji (vest) of Burhan Singh Hessa was found there. Further, on search, after about a distance of one kilometer, in the north-west of village Amjora in the area of village Purinia, in the mid of farm the dead body of deceased was found in mud and his blood-stained cloth was found lying there. On the basis of aforesaid facts, the informant came to the conclusion that accused persons Birendra Hessa @ Biren, Hari Hessa, Renso Hessa @ Dodi Ekka for some reason had committed murder of Burhan Singh Hessa. Accordingly, the informant submitted written report in Jagarnathpur Police Station. On the basis of aforesaid written report, F.I.R. being Jagarnathpur P.S. Case No. 2 of 1992 dated 18.02.1992 was registered against the accused persons for the offence under Sections 302/201/34 of the Indian Penal Code and the matter was investigated. After investigation, the police submitted the charge-sheet in the case. 5. The Additional Chief Judicial Magistrate, Chaibasa took cognizance of the offence under Sections 302/ 201/34 of the Indian Penal Code against all the accused persons and committed the case to the Court of Sessions on 02.06.1992, wherefrom the case was received in the Court of learned 1st Additional Sessions Judge-II, Chaibasa on 18.06.1992 for trial and disposal. 6. On 01.07.1992, the charges were framed against the accused persons under Sections 302/34 and 201 of the Indian Penal Code, which they pleaded not guilty and as such the trial started. 7. This Court at the risk of repetition is required to refer that appellant nos. 2 and 3 have died in course of pendency of appeal and as such the appeal stand abated so far as appellant nos. 2 and 3 are concerned. 7. This Court at the risk of repetition is required to refer that appellant nos. 2 and 3 have died in course of pendency of appeal and as such the appeal stand abated so far as appellant nos. 2 and 3 are concerned. Therefore, the instant appeal is now being pursued by appellant no. 1 only, who is being represented by Mr. Chanchal Jain, learned counsel, as has been appointed to assist the Court in the capacity of Amicus Curiae. 8. In course of trial, the prosecution has examined altogether seven witnesses, namely, Bidyadhar Hessa (P.W. 1); Raghunath Hessa (P.W. 2); Chander Mohan Hessa (P.W. 3); Jogeshwar Hessa (P.W. 4); Shankar Lal Chiranyan (P.W. 5); Dr. Arun Kumar (P.W. 6) and Gopal Das (P.W. 7). 9. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code and found the charges levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants had been found guilty and convicted for the offence punishable under Sections 302/34 and 201 of the Indian Penal Code and sentenced to undergo imprisonment for life for the offence punishable under Section 302/34 I.P.C and to undergo imprisonment for two years for the offence punishable under Section 201 I.P.C. Both the sentences were directed to run concurrently. 10. Mr. Chanchal Jain, learned Amicus Curiae appearing for appellants, assailing the judgment of conviction and order of sentence, has submitted that there is serious infirmity in the impugned order to the effect that the learned trial Court has not considered the testimony of P.W.1 and P.W. 2, to be eye witness and even after discarding them as eye witness their testimony has been considered in proving the case against the appellants by considering them to be last seen witnesses and proved the case taking into consideration the circumstantial evidence which has crept up by the testimony of the witnesses regarding commission of murder of the deceased. It has been submitted that once the trial Court has discarded the testimony of P.W. 1 and 2 not to be eye-witness then it was not fit on the part of the trial Court to treat their testimony even for proving the charge by considering the case to be of a circumstantial evidence. It has been submitted that once the trial Court has discarded the testimony of P.W. 1 and 2 not to be eye-witness then it was not fit on the part of the trial Court to treat their testimony even for proving the charge by considering the case to be of a circumstantial evidence. It has also been submitted by placing testimony of P.W. 1 that the testimony of P.W. 1 has rightly been considered to be not an eye witness since from the comparative examination of his testimony which he had made in his examination-in-chief with the cross-examination, it can be seen that he cannot be treated to be eye witness. Likewise, the testimony of P.W. 2 can also not be considered to be eye witness by taking into consideration his deposition in entirety. Therefore, the learned trial Court while considering the testimony of P.W. 1 and P.W. 2 not to be an eye witness there is no infirmity to that effect that once it has been considered to be not an eye witness, there was no occasion for the trial Court to give reliance upon their deposition to prove the charge against the appellants in order to establish the culpability of the appellants in commission of murder of the deceased. It has further been submitted that place of occurrence has not been determined since Investigating Officer who in the given facts of the case is the material witness to prove the place of occurrence reason being that the P.W. 1 and P.W. 2 in the examination-in-chief has submitted that they have seen dragging of the dead body by the accused persons; trail of the blood, blood-stained clothes but due to non-examination of the Investigating Officer the aforesaid testimony furnished by P.W. 1 and P.W. 2 has not been corroborated. It has further been submitted that non-examination of the Investigating Officer has greatly prejudiced the case of the petitioner and as such on this ground also, the judgment of conviction and order of sentence requires interference by this Court. Further argument has been made that motive to commit the murder, which is sine qua non for attracting the offence to be committed under Section 302 has also not been established but the same has also not been considered by the trial Court. Further argument has been made that motive to commit the murder, which is sine qua non for attracting the offence to be committed under Section 302 has also not been established but the same has also not been considered by the trial Court. In the backdrop of aforesaid submission, it has been submitted that the judgment of conviction and order of sentence requires interference by this Court. 11. Per contra, Mr. Pankaj Kumar Mishra, learned Addl. Public Prosecutor, appearing on behalf of State defending the finding recorded by learned trial Court basis upon which the judgment of conviction and order of sentence has been passed, has submitted that the death is admitted and the same has been corroborated from the testimony of P.W. 1 and P.W. 2, who have narrated the same in the examination-in-chief and the trial Court taking into consideration the version of P.W. 1 and P.W. 2, corroborating it with the other evidences and treated it to be a case of circumstantial evidence and as such the finding recorded by the learned trial Court after taking into consideration the aforesaid aspect of matter cannot be said to suffer from any error. It has further been submitted that even the doctor, who has examined the deceased in course of conducting autopsy, has also found the injury, which was ante-mortem in nature and the cause of death has been shown to be caused by sharp cutting weapon and blunt substance. Therefore, according to learned A.P.P. the testimony of P.W. 1 and P.W. 2, if corroborated with the testimony of doctor who has conducted the postmortem and if on the basis the learned trial Court found the charges leveled against the appellants proved beyond all reasonable doubts and passed the judgment of conviction and order of sentence, requires no interference by this Court. Therefore, submission has been made that the instant appeal lacks merit and the same is fit to be dismissed. 12. We have heard learned Amicus Curiae for the appellant and learned A.P.P for the State; perused the materials available on record, the deposition contained in Lower Court Record. Therefore, submission has been made that the instant appeal lacks merit and the same is fit to be dismissed. 12. We have heard learned Amicus Curiae for the appellant and learned A.P.P for the State; perused the materials available on record, the deposition contained in Lower Court Record. This Court, on the basis of argument advanced on behalf of parties and taking into consideration the testimony of witnesses, is of the view that learned counsel for the appellants has taken following grounds: (I).That it is not a case of direct evidence since the so-called eye-witnesses, P.W. 1 and P.W. 2, have been treated not to be an eye witness by the trial Court. (II).The Investigating Officer since has not been examined and as such the place of occurrence has not been proved, which is having the material bearing in establishing the case of circumstantial evidence as the finding of the trial Court is treating the case to be circumstantial evidence. (III). Further, circumstantial evidence can only be said to be proved if chain of circumstances is complete and there should no gap left in chain of evidence. 13. While on the other hand, learned A.P.P. has defended the order passed by learned trial Court taking the ground that chain of evidence is complete since the version of P.W. 1 and P.W. 2 have seen the occurrence from his house and their version have been corroborated from the version of doctor who has conducted postmortem. 14. The position of law is well settled that conviction can only be passed against the person(s) if the charge is found to be proved beyond all reasonable doubt, as has been held by Hon’ble Apex Court in the judgment rendered in Rang Bahadur Singh vs. State of [U.P. (2000) 3 SCC 454 ] at paragraph 22, which reads 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. 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. We really entertain doubt about the involvement of the appellants in the crime.” 15. It is also well settled position of law that in a case of proving the culpability of crime in a situation of circumstantial evidence chain of evidence is required to be complete, as has been held by Hon’ble Apex Court in the judgment rendered in Vijay Kumar v. State of Rajasthan [ (2014) 3 SCC 412 ], paragraph 9 of which reads as under: “9. The prosecution case is that the appellants/A-1 Atma Ram and A-3 Vijay Kumar conspired and murdered Keshar Bai and stole the ornaments/articles possessed by her. Nobody has witnessed the occurrence and the case rests on circumstantial evidence. In a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 16. Further, issue which requires consideration that whether the non-examination of the Investigating Officer can be said to be fatal for vitiating the entire prosecution story. This position of law is well settled in this regard that in each and every case the non-examination of the Investigating Officer cannot be said to be fatal for prosecution and the same depends upon the facts of the case, as has been held by Hon’ble Apex Court in the judgment rendered in Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 at paragraph 18, which reads as under: “18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar, this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar, it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, Rattanlal v. State of J&K and Ravishwar Manjhi v. State of Jharkhand, has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution. 17. The importance of non-examination of Investigating Officer is to be considered depending upon the facts of the case. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution. 17. The importance of non-examination of Investigating Officer is to be considered depending upon the facts of the case. As the facts of the case herein is that the trial Court itself has considered the testimony of P.W. 1 and P.W. 2 not to be an eye witness and as such the conviction is solely based upon the circumstantial evidence and the basis of coming to the conclusion to prove the culpability of the appellants is the place of occurrence as are being said by P.W. 1 and P.W. 2 that they have seen from their houses the commission of murder and dragging of dead body outside the house. In that view of the matter the non-examination of Investigating Officer requires importance to prove the place of occurrence because of the reason that the testimony of P.W. 1 and P.W. 2 which will be discussed subsequent to this paragraph will be evident that the description of place of occurrence by these two witnesses itself has been made self-contradictory. 18. This Court is now proceeding to examine the testimony of witnesses in order to come to the conclusion as to whether the learned trial Court has come to a correct finding in establishing the culpability of appellants in proving the crime alleged to have been committed by them. 19. P.W. 1, namely, Bidyadhar Hessa, in his examination-in-chief has stated that he knows the accused persons, namely, Birendra Hessa, Hari Hessa, Renso Hessa @ Dodi Ekka. He has deposed that the incident is of about nine months ago of the night of Sunday. When he heard the alarm, he saw from the Khirki (window) of his house that one Burhan Singh Hessa (deceased) has been killed by Biren, Hari and Renso by giving lathi and Kulhari (axe) blow and after tying him with rope, they dragged him to the place which he cannot say. In his cross-examination, he has stated at paragraph 4 that his father had two wives. Accused persons, Hari, Birendra and Renso are the sons from the wedlock of the first wife of his father, as such they are step brothers of P.W. 1. In his cross-examination, he has stated at paragraph 4 that his father had two wives. Accused persons, Hari, Birendra and Renso are the sons from the wedlock of the first wife of his father, as such they are step brothers of P.W. 1. At paragraph 5 and 6 this witness has stated that he and all the accused persons are residing separately and have separate mess and his house is on the western side of house of accused-Birendra. At paragraph 7, he has stated that according to them meaning of ‘Khirki’ is door, which is situated on the wall of the house. At paragraph-8, he has further stated that a Cowshed is there in between his house and the house of Birendra. He has stated that inside of the house of Birendra is not visible from inside of his house but from his Courtyard, the inside portion of house of Birendra can be seen. He has also stated that there is boundary of bush of Putush (a local plant) having the waist height in between his house and house of Birendra. At paragraph 9 of cross-examination he has stated that on hearing halla (alarm), he did not come out from the house due to fear. He did not come out his house for the whole night due to fear and did not tell anything to anybody. He has further stated at paragraph 11 that he was having no meeting with anyone in the night or even in the morning and not even with Munda (informant). At paragraph 12, he has stated that before coming to Sub-Inspector of Police, he did not tell anything to Munda. At paragraph 16, he has further stated that he had not seen the deceased coming. At paragraph 17, he has stated that there was no dispute in between the deceased-Burhan Singh and the accused persons. It further appears from the statement made at paragraph 24 that on the issue of unequal distribution of land there was dispute in between him and accused persons. 20. Raghunath Hessa has been examined as P.W. 2, who has corroborated the version of P.W. 1 by stating that on the fateful night he was in his house. In the house of accused-Birendra, all the three accused persons, namely, Birendra, Renso and Hari as also the deceased Burhan was consuming Haria (local wine) and was singing song. 20. Raghunath Hessa has been examined as P.W. 2, who has corroborated the version of P.W. 1 by stating that on the fateful night he was in his house. In the house of accused-Birendra, all the three accused persons, namely, Birendra, Renso and Hari as also the deceased Burhan was consuming Haria (local wine) and was singing song. Thereafter, he saw that all the accused persons giving lathi blow to Burhan and when he fell down the accused persons killed him by kulhari (axe) and thereafter the deceased was dragged by tying rope. In his cross-examination at paragraph 8, he has stated that the house of Birendra is not visible from inside of his house but he can see the house of Birendra after coming out of his house. He has stated that he did not come out from his house due to fear and further he had not seen Bidhyadhar in the night. At paragraph 14, it has been stated that he had not narrated to the Magistrate about the assault of Lathi and Kulhari (Axe) upon deceased by all the three accused persons. 21. P.W. 3-Chandra Mohan Hessa is the tender witness. 22. P.W. 4-Jogeshwar Hessa, is the informant, who has given his testimony on the basis of narration of story and as such he is a hearsay witness, and what has been informed to him, he has reported to the concerned police station by giving written report. It has been stated by him at paragraph 13 that he has not given any statement before the police that he had not said to anyone about the murder of the deceased but there was suspicion about the murder of the Burhan Singh. He has stated at paragraph 14 that he had narrated about the incident to the police on the basis of suspicion. It has been stated at paragraph 16 that Sub Inspector of Police has not seized any blood-stained soil from the place of occurrence. He has also stated that he had shown to the Sub Inspector of Police the stain of blood and the sign of dragging. He has further stated that the Inspector of Police had prepared the relevant papers but he did not put his signature on that papers. He had identified the written report, which has been marked as Exhibit 1. 23. Mr. He has further stated that the Inspector of Police had prepared the relevant papers but he did not put his signature on that papers. He had identified the written report, which has been marked as Exhibit 1. 23. Mr. Shankar Lal Chiranyan has been examined as P.W. 5, who had identified signature and of Sri A.K. Gupta, the then Officer-in-Charge, Jagarnathpur Police Station on the formal F.I.R.. The formal F.I.R. has been marked as Exhibit 3. In the cross-examination he has stated that formal F.I.R was not written before him and he does not know anything about this case. 24. P.W. 6-Dr. Arun Kumar, is a doctor, who has conducted post mortem on the dead body of deceased-Burhan Singh Hessa and has found following ante-mortem injuries: “(i). Ante-mortem loss of left hand from wrist, right hand from right forearm, right foot and left foot from below knee by sharp cutting weapon. (ii).Incised wound 3 ¼” X ½” X 1” over lower part of face right side. (iii).Head deformed and brain matter coming out through lacerated wound (3 ½” X 1 ½ “posteriorly). (iv). Incised wound 2 ½” X ½” X ½” over back.” He has stated that injuries were sufficient in ordinary course to cause death. He has stated that nature of injuries were caused by sharp cutting weapon and hard blunt substance. 25. P.W. 7, Gopal Das, has identified the writing and signature of Mr. A.K. Gupta on the inquest report. The inquest report has been marked as Exhibit 5, with protest. 26. This Court, on close scrutiny of testimony of P.W. 1 and P.W. 2, which has been considered by the prosecution as eye witness, has found from the deposition made at paragraph 2 of P.W. 1 that where it has been deposed by him that he after hearing alarm, saw from the Khirki (window) of his house, which has been said to be door by him in cross-examination, that deceased- Burhan Singh Hessa has been killed by Biren, Hari and Renso by giving lathi and Kulhari (axe) blow and was dragged by tying him with rope. It is thus, evident that if the testimony as recorded at paragraph 2 will be considered he can well be considered to be an eye witness but what he has stated in the cross-examination if it will be considered then there will be different picture and on the basis of such statement he cannot be considered to be an eye witness. Such inference has been drawn by this Court after taking into consideration the testimony of P.W. 1 as has recorded at paragraph 8 of cross-examination that there was cowshed in between his house and the house of Birendra. He has stated in categorical term that inside of the house of Birendra is not visible from inside of the house, but the house of Birendra can be seen from his Courtyard. It has been stated by him at paragraph 9 that he had not come out even after hearing alarm due to fear and remained inside the house for the whole night as also not narrated about the incidence to anyone. He has further stated at paragraph 11 of his deposition that he was having no meeting with anyone in the night or even in the morning and not even with Munda (informant). At paragraph 12 he has stated that before coming to Sub-Inspector of Police, he did not tell anything to Munda. He has further stated at paragraph 11 of his deposition that he was having no meeting with anyone in the night or even in the morning and not even with Munda (informant). At paragraph 12 he has stated that before coming to Sub-Inspector of Police, he did not tell anything to Munda. For ready reference, the Hindi version of testimony recorded at paragraph 2, 8, 9, 11 12 are referred hereunder as: 2 jfookj jkr dh ?kVuk gSA vkt ls djhc 9 eghuk iwoZ dh ?kVuk gSA eSa vius ?kj esa FkkA eSaus gYyk lquk rks f[kM+dh ls ckgj ns[kk rks ns[kk fd cqढ+u flag dks fcjsu] gfj vkSj jsulks ykBh vkSj dqYgkM+h ls ekjdj tku ekj fn;k vkSj mls jLlh ls ck¡/kdj [khapdj ys x;kA dgk¡ [khapdj ys x;k] ugha dg ldrk gw¡A izfrijh{k.k 8- esjs ?kj vkSj fcjsUnz ds ?kj ds chp esa fcjsUnz dk xqgky gSA esjs ?kj ds vUnj ls fcjsUnz ds ?kj dk vUnj Hkkx fn[kk;h ugha nsrk gS ijUrq esjs vk¡xu ls fojsUnz dk ?kj ds vUnj fn[kk;h iM+rk gSA esjs ?kj vkSj fcjsUnz ds ?kj ds chp esa ?ksjku gSA iqVql dh >kM+h dk ?ksjku gS] tks dej rd Å¡pk gSAa 9- gYyk lqudj eSa Mj ls ?kj ds vUnj gh jgk vkSj ckgj ugha fudykA eSa ml jkr Mj ls ckgj fudyk gh ugha vkSj Mj ls fdlh dks crk;k Hkh ughaA 11- ?kVuk dh jkr esa eq>s fdlh ls eqykdkr ugha gqbZA losjs Hkh fdlh ls eqykdkr ugha gqbZA eq.Mk ls Hkh eqykdkr ugha gqbZA 12 nkjksxk ds vkus ds igys eSaus eq.Mk dks dqN ugha crk;k FkkA 27. Raghunath Hessa has been examined as P.W. 2, who has corroborated the version of P.W. 1 by stating that on the fateful night he was in his house. In the house of accused-Birendra, all the three accused persons, namely, Birendra, Renso and Hari as also the deceased Burhan was consuming Haria (local wine) and was singing song. Thereafter, he saw that all the accused persons giving lathi and Kulhari (Axe) blow and killed the deceased. Thereafter the deceased was dragged by tying rope. In his cross-examination at paragraph 8, he has stated that inside the house of Birendra is not visible from inside of his house but he can see the house of Birendra after coming out of his house. Thereafter the deceased was dragged by tying rope. In his cross-examination at paragraph 8, he has stated that inside the house of Birendra is not visible from inside of his house but he can see the house of Birendra after coming out of his house. He has stated that he did not come out from his house due to fear and further he had not seen the Vidhyadhar (P.W. 1) in the night. At paragraph 14, it has been stated that he had not narrated to the Magistrate about the assault of lathi and Kulhari (Axe) upon the deceased by all the three the accused persons. Likewise, from the examination-in-chief of P.W. 2, it appears that he has also projected himself to be an eye-witness, if his statement recorded at paragraph 2 of the examination-in-chief will be taken into consideration wherein it has been stated by him that he has seen assaulting these three accused persons by giving lathi and kulhari (axe) blow to deceased and dragging of dead body by tying with rope. It will give a complete different picture if his testimony recorded under paragraph 8, 9 and 14 will be considered wherein it has been stated inside the house of Birendra is not visible from inside his house but he can see the house of Birendra after coming out of his house. At paragraph 9, he has stated that he did not come out from his house due to fear and further he had not seen the Bidhyadhar (P.W. 1) in the night. At paragraph 14, it has been deposed by him that he had not stated about the assault of lathi and Kulhari (Axe) by the accused person upon the deceased. At paragraph 9, he has stated that he did not come out from his house due to fear and further he had not seen the Bidhyadhar (P.W. 1) in the night. At paragraph 14, it has been deposed by him that he had not stated about the assault of lathi and Kulhari (Axe) by the accused person upon the deceased. For ready reference, paragraph 8, 9 and 14 are quoted as under: izfrijh{k.k 8- esjk vk¡xu vyx gS rFkk fcjsUnz dk vk¡xu vyx gSA chp esa >kM+h dk ?ksjku gSA esjs ?kj ds vUnj ls fcjsUnz dk ?kj fn[kk;h ugha iM+rk gS ijUrq ckgj fudyus ij fcjsUnz dk ?kj fn[kk;h iM+rk gSA 9- eSa Mj ls ?kj ls ugha fudyk FkkA eSaus jkr esa fo|k/kj dks ugha ns[kk Fkk 14 eSaus eftLVsªV lkgc dks ;g ugha dgk Fkk fd rhuksa eqnkygqe us cqढ+u flag dks dqYgkM+h vkSj ykBh ls ekj fn;Ka It is, thus, evident that the testimony of P.W. 1 and P.W. 2, which has not been considered to be eye witness by the trial Court, according to our considered view, cannot be said to be an incorrect finding if the testimony of P.W. 1 and P.W. 2 is taken into consideration in entirety i.e., the testimony made in examination-in-chief and if compared with the testimony made in the cross-examination. 28. The question now arises that when the testimony of P.W. 1 and P.W. 2 has been discarded by learned trial Court not to be eye-witness then how the charges levelled against the accused persons said to have been proved. 29. It is evident from the impugned judgment, as would appear from the finding recorded at paragraph 13 wherein the learned trial Court has recorded the finding that the evidence of P.W. 1 and P.W. 2 that they have seen the accused persons assaulting the deceased and committing murder cannot be believed. But even after coming to the conclusion that P.W. 1 and P.W. 2 cannot be treated to be an eye witness in the subsequent paragraphs the learned trial Court has considered the deposition of P.W. 1 and P.W. 2 by taking into consideration the fact that their houses which lies adjacent to the house of witnesses and further by taking into consideration that if any Halla-Gulla (alarm) was raised from the house of the accused persons both the accused persons are competent to hear the Halla-Gulla (alarm). The learned trial Court has further considered that the written report of P.W. 4 is the first and foremost statement regarding the occurrence, which discloses that on the very next day of the occurrence, at least P.W. 1 had told the informant (P.W. 4) that in previous night a quarrel in between the deceased and accused persons had taken place in the house of accused Birendra and he had heard halla (noise) of quarreling coming from the house in the night. Further consideration has been made that P.W. 1 has also deposed on oath that he has heard the sound of halla (alarm) coming from the house of accused Birendra and this version of P.W. 1 finds corroboration from the statement of P.W. 4-Munda of the village (informant), who has deposed that P.W. 1 and wife of accused Birendra had told him that on 16.02.1992 in the night the deceased came to the house of the accused Birendra and took meal and drinks and thereafter left the place and after that he was not seen alive. The aforesaid fact led the trial Court to come to the conclusion to prove the commission of offence by the appellants. 30. This Court in order to examine the aforesaid finding based upon hearing of halla (alarm) even though P.W. 1 and P.W. 2 has been said not to be an eye witness can the finding recorded by learned trial Court be said to be proper, is required to be examined. The question of proving of charge merely on hearing the halla (alarm) is the sole basis to prove the culpability of crime by the appellants. The question herein is that only on the basis of halla (noise) can there be conviction of persons concerned by establishing the charge that when the version of the so-called eye witnesses, namely, P.W. 1 and P.W. 2 has been said to be not acceptable as of eye witness. Their testimony has been accepted by corroborating the same with the halla (noise) which was coming out from the house of accused Birendra. The admitted fact herein, as would appear from the testimony of P.W. 1 and P.W. 2, that both of them have not seen the occurrence as would appear from their testimony recorded in the cross-examination, as quoted and referred hereinabove. The admitted fact herein, as would appear from the testimony of P.W. 1 and P.W. 2, that both of them have not seen the occurrence as would appear from their testimony recorded in the cross-examination, as quoted and referred hereinabove. They have also not said in their deposition that they have heard any Halla (noise) and identified the deceased save and except it has been stated by them that they have seen the accused persons assaulting the deceased by lathi and kulhari (axe) blow. 31. This Court on close scrutiny of the aforesaid fact, as has been made basis to convict the appellant i.e., hearing of halla by P.W. 1 and P.W. 2 has again gone to the testimony of P.W. 1 and P.W. 2 to scrutinize as to whether any such statement has been made by them in course of trial but we have found no such statement, save and except that they have seen the happening of occurrence, as has been stated by them at paragraph 2 of the examination-in-chief. It is their specific statement that they have not come out in whole night from their house due to fear and they have not uttered a word that they have heard halla and as such they have recognized the voice of the accused persons. Even the informant has not uttered a word and that cannot be, reason being that he has given written report on the basis of narration of the wife of the deceased. 32. This Court, therefore, is of the view that what has led the learned trial Court to reach to the conclusion about proving of charge against the appellants for commission of crime on the basis of the Halla-Gulla (noise) from the house of the accused persons that cannot be a sufficient and cogent evidence to prove the culpability of the accused persons. Further the prosecution has seriously failed to establish the culpability of the commission of crime by the appellants since the place of occurrence has not been proved as the Investigating officer has not been examined in course of trial for his examination-in-chief and cross-examination. Further the prosecution has seriously failed to establish the culpability of the commission of crime by the appellants since the place of occurrence has not been proved as the Investigating officer has not been examined in course of trial for his examination-in-chief and cross-examination. Specific case of prosecution that the place of occurrence is the house of Birendra and the dead body after giving lathi and Kulhari (axe) blow upon the deceased has been dragged and the soil become blood-stained but the informant in specific term has said that even after apprising about the same the Sub Inspector of Police has not seized the blood-stained soil. Therefore, the place of occurrence has also not been established, which is required to establish the prosecution case, as such the investigating officer in a case of this nature should have been examined. Reference, in this regard be made to judgment rendered by Hon’ble Apex Court in Ravishwar Manjhi v. State of Jharkhand, [ (2008) 16 SCC 561 ], wherein at paragraph 27 has been held as under: “27. The investigating officer in a case of this nature should have been examined. His examination by the prosecution was necessary to show that there had been a fair investigation. Unfortunately, even no site plan was prepared. There is nothing on record to show as to the exact place where the occurrence had taken place. It is stated that the house of the parties is divided by a road. If that be so, it was all the more necessary to pinpoint the exact place of occurrence to ascertain who was the aggressor.” 33. It has been pointed out by learned Amicus Curiae that the trial Court while proving the place of occurrence has considered the statement recorded by the Investigating Officer in course of investigation under Section 161 of the Code of Criminal Procedure and giving reliance upon the same the place of occurrence has been treated to be established which is also one of the basis of proving the commission of crime by the appellants. 34. The question is that when we are living in the realm of fair and transparent trial then where is the question to give reliance upon the statement made under Section 161 of the Cr.P.C. in course of investigation. 34. The question is that when we are living in the realm of fair and transparent trial then where is the question to give reliance upon the statement made under Section 161 of the Cr.P.C. in course of investigation. But the learned trial Court in complete ignorance of the said principle has relied upon the statement recorded under Section 161 of the Cr.P.C of the Investigating Officer which according to our considered view cannot be said to be justified one reason being that the Investigating Officer had not been brought to prove the said fact in course of trial. 35. This Court, therefore, is of the view that the position of law that non-examination of Investigating Officer is not always treated to be fatal for prosecution but herein in the facts of the case wherein the place of occurrence itself has been disputed by testimony of P.W. 1 and P.W. 2 the requirement of examination of Investigating Officer in course of trial became sine qua non to establish the charge against the appellants, but having not done so it cannot be said that the charge has been proved beyond all reasonable doubt. 36. This Court on the basis of position of law that the life of liberty can only be taken or a person can only be said to have committed the crime if the charge levelled against him/them will be said to be proved beyond all reasonable doubt, as has been held by Hon’ble Supreme Court in the judgment rendered in Rang Bahadur Singh vs. State of U.P. (2000) (supra). But herein on the facts of the given case, as per the discussion made hereinabove, this Court is of the view that the prosecution has miserably failed to establish the charge beyond all reasonable doubt, but the same having not been considered by the learned trial Court in right prospective, therefore, the judgment of conviction and order of sentence requires interference by this Court. 37. Accordingly, Judgment of conviction dated 25th June, 1994 and Order of sentence dated 27th June, 1994, passed by 1st Additional Sessions Judge, Chaibasa, in S.T. No.168 of 1992 is hereby quashed and set aside. 38. Resultantly, the appellant no. 1, namely, Hari Hessa is acquitted and discharged from the liability of his bail bonds. 39. In the result, the instant appeal stands allowed. 40. 38. Resultantly, the appellant no. 1, namely, Hari Hessa is acquitted and discharged from the liability of his bail bonds. 39. In the result, the instant appeal stands allowed. 40. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. 41. Before parting with this order, it requires to refer herein that the Co-ordinate Bench of this Court vide order dated 11.04.2019 appointed Mr. Chanchal Jain, the learned counsel as Amicus Curiae to argue this criminal appeal on behalf of the appellant no.1 and it was further ordered that a copy of the order be forwarded to the Secretary, Jharkhand High Court Legal Services Committee, for information and fee for the Amicus was directed to be fixed after disposal of this criminal appeal. 42. In view thereof, the Secretary, Jharkhand High Court Legal Services Committee is directed to ensure payment of admissible fee in favour of learned Amicus. 43. This Court expresses its gratitude to Mr. Chanchal Jain, learned Amicus Curiae for tendering his assistance.