CRIMINAL APPEAL NO. 1521 OF 2004
Against the Judgment and order of conviction and sentence dated 14th
June, 2002 and 17th June, 2002 respectively passed by Additional
Sessions Judge, Pakur in Sessions Case No. 97 of 97/29 of 97.
Bajoon Murmu ....... APPELLANT
- VERSUS-
The State of Jharkhand ... RESPONDENT
For the Appellant : Mr. S.N. Roy, Amicus Curiae.
For the State : Mr. R.S. Singh, APP
PRESENT
HON'BLE MR. JUSTICE AMARESHWAR SAHAY.
HON'BLE MR JUSTICE R.R. PRASAD
By Court This appeal has been filed by the appellant from the Jail. The
appellant has challenged his conviction and sentence passed by the
Trial Court whereby he has been convicted under section 302 of the
Indian Penal Code and has been sentenced rigorous imprisonment
for life vide impugned Judgment dated 17.06.2002 in Sessions Case
No. 97 of 97/29 of 97 by the Additional Sessions Judge, Pakur.
2. The prosecution case in brief is that on 05.07.1996 at
about 11:00 a.m., one Bale Kisku (P.W.-7) went to his neighbour’s
house Raman Tudu (deceased) and called him at his door. Raman
Tudu (deceased) and his wife Gangan Muni Soren (informant) also
reached there and then saw that Barka Hansda, Ramtudu, Lambat
Hembram, Bishnu Singh were sitting there, Bishnu Singh and
Raman Tudu asked Bale Tudu to bring liquor. Bale brought liquor
and thereafter, all the four drank together. When Raman Tudu and
others were drinking liquor at that time, the appellant Bajoon Murmu
came there and on seeing them drinking, he went back. Further case
of the prosecution is that Bishnu Singh, Lambat Hembram and Barka
Hansda, after completing his drink, returned and Raman Tudu
(deceased) was lying on the ground. At about 12:00 noon, the
appellant again came to the place holding Lathi and then he gave
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one Lathi blow on the temple of Raman Tudu who was lying on the
ground due to which, blood started oozing out from his temple and
he died at the spot. The informant Ganga Muni Soren was present at
the place of occurrence and when she raised Hulla, then the
villagers assembled there and thereafter, she narrated the story to
them. According to the informant, the appellant was on enimical
terms with her husband due to some land dispute and on earlier
occasion also, he had threatened her husband to kill.
3. In course of trial, altogether eight witnesses were
examined on behalf of the prosecution to establish the charges. Out
of the aforesaid P.Ws., P.W.-1 namely Masih Tudu and P.W.-6
Chunku Marandi are the eye witnesses to the occurrence and the
learned Trial Court, on the basis of their evidence, has held the
appellant guilty.
Other witnesses examined on behalf of the prosecution
are either formal or hearsay, therefore, are not of much importance.
4. Mr. S.N. Roy, learned amicus curiae, appearing on
behalf of the appellant submitted that if the evidence of the so called
two eye witnesses i.e. P.Ws. 1 and 6 are scrutinised minutely then it
would appear that they are in fact not eye witnesses. He also
pointed out that the most important witness i.e. the informant Ganga
Muni Soren who was an eye witness to the occurrence, has not
been examined by the prosecution for the reasons best known to it.
He submitted that though the prosecution miserably failed to prove
the charges but even then, the learned Trial Court has convicted and
sentenced the appellant.
5. We have gone through the evidence of the prosecution
witnesses particularly the evidence of the P.W.-1 namely Masih
Tudu and P.W.- 6 Chunku Marandi who have deposed as the eye
witnesses to the occurrence.
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P.W.-1 Masih Tudu, in his examination-in-chief has
stated that he saw the appellant coming to the place of occurrence
and then saw that he gave one Lathi blow on the temple of Raman
Tudu who was already lying on the ground in an intoxicated state.
In his cross examination, this witness has stated that he
reached at the place of occurrence at his own and not after hearing
any Hulla and when he reached at the place of occurrence, he found
Raman Tudu (deceased) was sleeping on the ground. He further
stated in cross examination that the appellant assaulted the
deceased while he was in that lying condition.
P.W.-6 Chunku Marandi, in her examination-in-chief has
stated that in her courtyard, the appellant assaulted the deceased by
means of Lathi and thereby, killed him. In cross examination, she
specifically stated that at the time when Raman Tudu was being
assaulted, none other than her was present at that time. After that,
she rushed to call her husband.
6. If we believe the evidence of P.W.-6 Chunku Marandi,
then as per her evidence, at the time of assault being made to the
deceased by the appellant, except this witness, no other person was
present at the relevant time in the place of occurrence.
In view of this statement of P.W.-6, the presence of
P.W.-1 at the relevant time and date and place of occurrence
becomes doubtful.
7. The informant in her Fardbayan has stated that after the
assault, she raised Hulla and on hearing Hulla, the villagers namely
Masih Tudu, Beran Tudu, Biram Tudu etc. came there and saw the
occurrence. As per the Fardbayan of the informant, the eye witness
i.e. Masih Tudu (i.e. P.W.-1) came only after hearing ‘Hulla’ raised
by her. Therefore, it is clear that at the time of actual assault, he was
not present at the place of occurrence. In such a situation, it is
difficult to rely on the evidence of P.W.-1 Masih Tudu.
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8. So far P.W.-6 Chunku Marandi is concerned, the
informant in her Fardbayan has not stated that this witness P.W.-6
was present at the place of occurrence at the alleged date and time
of occurrence or even that she arrived at the place of occurrence on
hearing ‘Hulla’ of the informant. This fact gets substantiated from
their evidence also as elicited in her cross examination where she
has admitted that she had stated before the police that when she
returned home she found the deceased dead lying on the ground.
This fact clearly indicates that P.W.-6 was never an eye witness to
occurrence.
9. As it appears that Investigation Officer has not been
examined by the prosecution and due to the non examination of the
Investigation Officer, the defence has been prejudiced since his
attention could not be drawn against the vital contradictions in the
evidence of P.Ws-1 and 6.
10. Taking into consideration all the facts and
circumstances stated above, we do not find sufficient evidence to
affirm the conviction and sentence against the appellant passed by
the Trial Court rather we find the evidence of the prosecution to be
weak and unreliable.
11. Thus, on consideration of the facts and evidence
discussed above, in our view, the prosecution has not been able to
establish the charges beyond all reasonable doubts.
12. In view of the discussions and findings above, this
appeal is allowed. The conviction and sentence passed by the Trial
Court is hereby set aside. The appellant, who is on bail, is
discharged from the liability of bail bonds.
(Amareshwar Sahay, J.)
(R.R. Prasad, J.)
Jharkhand High Court
Ranchi.
Dated . 20th July, 2009
RC/