Criminal Appeal No.393 of 1993
With
Criminal Appeal (Jail) No.198 of 1997
---
Against the judgment of conviction dated 24.6.1993 and order of sentence
dated 28.6.1993 passed by Shri D. N. Pathak, 6th Additional Sessions
Judge, Dumka in Sessions Case No. 166 of 1992.
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Mohan Marandi @ Gonga-------Appellant ( In Cr. Appeal No. 393/93)
Mohan Marandi @ Gonga-------Appellant( In Cr. Appeal (Jail) No. 198/97)
-Versus-
The State of Bihar (now Jharkhand) ------- Respondent.
---------
For the Appellant : None.
For the Respondent : Mr.Jagannath Mahta, A.P.P.
-------
PRESENT
THE HON'BLE MR.JUSTICE NARENDRA NATH TIWARI
THE HON'BLE MR JUSTICE PRADEEP KUMAR
----
By Court: Both the appeals have been filed against the judgment of
conviction and sentence against the accused, Mohan Marandi
@ Gonga by Shri D. N. Pathak, 6th Additional Sessions Judge,
Dumka in Sessions Case No. 166 of 1992. Cr. Appeal No. 198
of 1997 was filed by the appellant from jail. Jail Appeal was
admitted and Mr. Sunil Kumar Pathak was appointed to appear
in this case as amicus curiae for the appellant where the original
Cr. Appeal No. 393 of 1993 was filed by Mr. Rajiv Ranjan
Mishra, Advocate. However, neither the advocate for the
appellant nor the Advocate appearing as amicus curie is present
in Court to argue the case, hence we ourselves looked into
entire appeal with the help of A.P.P.
2. As stated the appeal is directed against the judgment of
conviction dated 24.6.1999 and order of sentence dated
28.6.1999 passed by Shri Dinesh Narain Pathak, 6th Additional
Sessions Judge, Dumka, by which he convicted the appellant,
Mohan Marandi @ Gonga for the charges under Section 302 of
the Indian Penal Code and sentenced him to undergo R.I. for
life under Section 302 of the Indian Penal Code.
2
3. The short case giving rise to the prosecution is that on
5.1.1992 the informant Dhena Soren wife of deceased Raska
Murmu had gone to Purnea Hatia at 3 P.M. but when she
returned back at 6 P.M., she found that the door of her husband
was chained and locked from outside and she waited for her
husband till 10 P.M. Raska Murmu, he did not return in the
night. In the next morning at about 6 A.M. one Nunua Tudu
informed her that the dead body of her husband is lying in the
field of Shiblal Manjhi and then along with several villagers she
went there and found the dead body of her husband-deceased,
with sign of scratches on the neck and at some distance from
the dead body there was one blue-coloured old Chapal, one
check Terry cotton Handker-chief and one check green yellow
coloured Lungi and one comb of some other person and one
Panchi(Gamcha) green-coloured of her husband and one check
woolen shawl of her husband was lying there. It is further stated
that in the mean time, the accused, Mohan Marandi @ Gonga
came there and began collecting the handkerchief, Lungi, comb
and chapal. Thereupon the villagers caught hold of him and
started assaulting him. The accused on enquiry stated in
presence of all the villagers that yesterday night on 5.1.1992 at
about 8 P.M. he along with deceased, Raska Murmu took wine
from the shop of Pirthi Manjhi and while they were going to
their Tola in the way some altercation took place about the
charges of the wine suddenly the deceased, Raska Murmu
attacked him, but fell down on the ground then he pressed his
neck and went to his house thinking that the deceased had also
gone back to his home. Under the impression that the deceased
must have gone back to his house, he came again to collect his
articles, which had fallen down during scuffle. Thus it is
alleged that because there is some land dispute existing between
the accused Devar of the informant and her deceased husband,
hence this murder was committed by the accused. On the basis
of the said Fardbeyan (Ext. 3) police registered F.I.R.(Ext.4)
and after investigation submitted charge-sheet.
3
4. During trial the accused pleaded not guilty to the charge
and claimed that he had not committed murder of the
deceased and that his confession was obtained after assaulting
him by the villagers. Since his articles were lying near the dead
body, he was caught on suspicion and falsely implicated.
5. During trial, the prosecution examined 8(eight) witnesses
and proved the Fardbeyan(Ext.3) F.I.R. ( Ext. 4) and also
proved the post-mortem report (Ext.2).
6. The trial court after hearing the parties found the accused
guilty as aforesaid.
7. We have gone through the entire evidence adduced by
the prosecution in this case. Prosecution has examined 8 (eight)
witnesses. P.W.1, Bisni Manjhian, has stated that in her
presence the accused, Mohan Marandi @ Gonga accepted that
his Lungi and Chapal etc. were lying near the dead body and he
stated that he had committed the murder of the deceased in the
previous the night. P.W.2 was tendered for his cross-
examination. P.W. 3, Nunua Tudu also stated that in his
presence the accused, Mohan Marandi @ Gonga accepted that
the Chapal, Lungi & Gamcha belonged to him and he had
committed the murder of the deceased. P.W.4, Dr. B. K. Sinha,
who has conducted the post-mortem examination on the dead
body of the deceased, Raska Murmu and found multiple
abrasions in front of the neck of the deceased, with swelling of
upper part of neck and his opinion that the deceased died due to
asphyxia as a result of throttling. P.W.5, Kunal Kisku has also
stated in his presence that the accused, Mohan Marandi @
Gonga accepted that the Chapal, Lungi and Gamcha, belonged
to him and he had committed the murder of the deceased. P.W.
6, Kunal Kisku is the informant and she has supported the
F.I.R. and stated that when she went to the place where the
dead body was lying she found Chapal, Gamcha and Lungi etc.
near the dead body of her husband and when the villagers
inquired from the accused, Mohan Marandi @ Gonga he
accepted that the articles belonged to him and he had committed
the murder of deceased, Raska Murmu by pressing his neck.
4
P.W.7 was tendered for his cross-examination. P.W. 8 is the
Investigating Officer, who proved the Fardbeyan (Ext.3),
formal F.I.R. (Ext.4), Seizure-list (Ext. 5), signature on seizure-
list (Ext.6) and Inquest report (Ext.1). He also stated that he
recorded the statement of the accused, in which he confessed
his guilt.
8. We have carefully examined the evidences
adduced by the prosecution during trial and we find that no
body has seen the accused-Mohan Marandi @ Gonga
committing the murder of his brother-deceased Raska Murmu.
All the witnesses, including P.W.8 have only stated that when
they gathered near the dead body of the deceased Raska
Murmu in a field of Shiblal Manjhi, then they saw some articles
like Chapal, Gamcha, Chadar, Lungi, terry cotton handker-chief
and comb etc. lying scattered and that in presence of the
villagers, the accused, Mohan Marandi @ Gonga accepted that
the said articles belonged to him and he had committed the
murder of his brother-deceased in the last night. So there is two
type of confessions of the accused on which the entire
prosecution case has based; One confession before the villagers
at the place of occurrence and another confession before the
police, which has been recorded by the Investigating Officer.
The confession recorded by the Investigating Officer, S.I., Arun
Paswan at Paharia Tola on 6.1.1992 which find place in page 5
of the paper book, is hit by Section 26 of the Indian Evidence
Act and it cannot be relied upon for convicting the accused.
9. The second confession is before the witnesses
P.W.6 the informant, P.W. 5, Kunal Kisku, P.W. 7, Sobin
Marandi. It appears from the evidence of the informant, P. W.
6 itself that all the villagers, about 40-60, have collected at the
place of occurrence and under their threat and assault the
accused, Mohan Marandi @ Gongu accepted his guilt, although
the informant has denied the fact that the accused was badly
assaulted by the villagers, it appears from the record that before
the police in her fardbeyan (Ext. 3), she has admitted that the
villagers caught hold of the accused and assaulted him and
5
during assault he received injuries. The statement of the
informant (Ext. 3) is also supported by the fact that when the
accused was produced before the Court of Chief Judicial
Magistrate, Dumka on 6.1.1992, the Magistrate found several
injuries on his body, which were bandage and he stated before
the Court that he was also assaulted by the villagers. He was
referred to the Jail Dr. by the Court’s order at the time of
remand to jail custody. Thus, we find that there is ample
evidence to give a finding that the confession before the
villagers proved by the witnesses, namely, P.Ws. 1, 2, 3, 5, 6
and others, is also not voluntarily and was obtained by the
villagers by threat and assault and accordingly the said
confession is also hit by Section 24 of the Indian Evidence Act
and cannot be relied upon for convicting the accused.
10. In such a situation, we find no evidence to prove the fact
that the accused, Mohan Marandi @ Gonga had committed the
murder of the deceased, Raska Murmu. Accordingly, we find
that the prosecution has failed to prove the charges beyond all
reasonable doubts. Hence the judgment of conviction dated
24.6.1993 and order of sentence dated 28.6.1993 passed by the
trial court is set aside and the appellant is acquitted of the
charges levelled against him. Since the appellant is on bail, he
is discharged from the liability of his bail bond.
11. Accordingly, the appeal is allowed.
[ Narendra Nath Tiwari,J]
[ Pradeep Kumar, J]
Jharkhand High Court, Ranchi
The 28th January, 2009
JK/NAFR