Govt. Appeal (DB) No. 1 of 1992 (P)
Against the judgment of acquittal dated 04/10/1991 passed by Sri Jawahar Lal
Choudhary, 1st Additional Sessions Judge, Santhal Parganas, Dumka in
Sessions Case No. 193 of 1991.
State of Bihar (Now Jharkhand)..................... Appellant
Versus
1. Suresh Kapri
2. Mahendra Manjhi
3. Bishwa Nath Manjhi
4. Motilal Manjhi
5. Bibhuti Manjhi
6. Abhimanyu Manjhi
7. Dasrath Manjhi
8. Nand Lal Manjhi
9. Baldeo Manjhi..................... Respondents
......
For the Appellant : Miss. Anita Sinha, A.P.P.
For the Respondents : M/s. D.K.Prasad, S.K.Mahto
......
PRESENT
The Hon'ble Mr. Justice Amareshwar Sahay
The Hon'ble Mr. Justice R.R.Prasad
JUDGMENT
By Court. All the nine, above named, respondents, who were charged
under Section 302/34 IPC for intentionally committing the murder of
Ganesh Manjhi in furtherance of their common intention on
18/11/1990
between 8.00 p.m. to 9.00 p.m. at Village Hiradih in the
District of Dumka, were acquitted from the said charge by the learned
1st Additional Sessions Judge, Santhal Parganas, Dumka, in Sessions
Case No. 193 of 1991 by the impugned judgment dated 04/10/1991.
Against the said judgment of acquittal, the State has filed the present
government appeal.
2. The facts, in short, are that on 18/11/1990 at about 1.30
p.m., Ganesh Manjhi (the deceased) left his house for Baniyara Hat. His
family members were waiting for him but he did not return till evening.
At about 8-9 p.m., there was hulla in the village that a thief had been
apprehended near Dhobai River, while he was committing theft of
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paddy. The said thief was beaten by the villagers. When this hulla
spread in the village, then all the villagers including males, females,
children etc. came out of their houses. The informant, alongwith her
son Ashok Manjhi, elder brother of her husband (Bhaisur) Farsi
Manjhi, nephew Dukhan Manjhi and villager Kumbhkarn Manjhi went
near Dhobai River and found that her husband (the deceased) was
lying there in injured condition and at that place pulses, potatoes and
some vegetables were scattered. At that place, the informant allegedly
saw that all the nine respondents, herein, were present there and they
were dragging her husband and they were also assaulting him. When
her ‘Bhaisur’ wanted to give water to the injured, those nine persons
became ready to assault him. Thereafter, the respondents dragged the
injured towards their own house. The injured is said to have died near
the house of Respondent no. 4 Motilal Manjhi in the village. The
informant stated that she remained in her house for the whole night
and in the next morning only she went to the police station with other
villagers to give information about the occurrence.
The motive for such occurrence was said to be the land
dispute between the parties.
3. In order to establish the charges, altogether 10 witnesses
were examined on behalf of the prosecution. The learned trial court, on
the basis of the evidence and materials on record, acquitted the
accused respondents from the charges, holding that the case of the
prosecution was doubtful and not a single independent witness was
examined in the case though the definite case of the prosecution was
that a large number of villagers had assembled at the place of
occurrence but not a single witness came to support the prosecution
case.
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4. Challenging the impugned judgment of acquittal, Miss
Anita Sinha, learned A.P.P. appearing for the State submitted that in
view of the specific and direct evidences of PWs. 1, 2 and 3, who were
the eyewitnesses to the occurrence, the trial court ought not to have
acquitted the accused respondents.
5. On the other hand, Mr. D.K.Prasad, learned counsel
appearing for the accused respondents submitted that all the three
alleged eyewitnesses, i.e. PWs. 1, 2 and 3 are close relatives and family
members of the deceased therefore, their evidence cannot be said to be
of much value, when specific and definite case of the prosecution was
that the villagers had assembled at the place of occurrence after
hearing hulla that a thief had been apprehended and he was being
beaten then in such situation, it was incumbent upon the prosecution
to examine some of the villagers, who are the independent witnesses
but not a single villager was examined by the prosecution and,
therefore, the veracity of the prosecution case itself becomes doubtful
and, as such, the learned trial court rightly acquitted the accused
persons from the charges leveled against them.
6. We have gone through the evidences of all the prosecution
witnesses. PW-1 is Jamun Manjhi, who has stated in his examination-
in-chief that when he reached at the place of occurrence he found
Ganesh Manjhi in unconscious state. The 9 accused persons were also
seen at the place of occurrence, they were holding Lathi and they
brought the deceased Ganesh Manjhi dragging him in front of the
house of Motilal Manjhi.
In view of the this statement made by this witness, it is
clear that when this witness reached at the place of occurrence, he
found the deceased Ganesh Manjhi in unconscious condition. This
witness in cross-examination has admitted that he is closely related to
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the deceased. From the evidence of this witness, it is clear that he did
not see the accused respondents assaulting the deceased at the place of
occurrence. As a matter of fact, when he reached at the place of
occurrence, the deceased was already lying on the ground unconscious
in injured condition.
7. PW-2 Farsi Manjhi, is said to be the another eyewitness
and he has stated in his evidence that on the relevant date at about
8.00 p.m., after hearing hulla, he went near Dhobai River and he saw
Ganesh Manjhi was being assaulted by the accused persons, who were
holding Lathi and when he wanted to give water to the injured, the
accused persons did not allow him to give water to the injured. He
further stated that Ganesh Manjhi was lying on the ground in injured
condition. Thereafter, the accused persons lifted the injured Ganesh
and brought him near the house of Motilal, where the injured died.
This witness, in his cross-examination, has stated that
when he reached at the place of occurrence, he saw Ganesh was lying
on the ground and the accused persons were assaulting him. He
further stated that he stayed at the place of occurrence for half an hour
and till he remained there, the accused persons were continuously
assaulting the deceased, however he stated that he saw the occurrence
from a distance of about 40 yards.
8. PW-3 is the informant Kanti Devi is the wife of the
deceased. In her evidence she stated that she reached at the place of
occurrence on hearing hulla from the side of the River and when she
reached there alongwith her ‘Bhaisur’ and her son, she saw some
persons were assaulting her husband and amongst assailants, she
could identify these accused respondents. She further stated that her
husband was lying on the ground and when he asked for water, she
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tried to give him water but the accused Bishwanath Manjhi started
abusing her. .
9. The other witnesses examined on behalf of the prosecution,
i.e. PW-4 Dukhan Manjhi, PW-6 Kesho Mahto and PW-7 Ashok Manjhi,
were tendered in his evidence, whereas PW-5 Geeta Devi was a hear say
witness, PW-8 Anil Manjhi was a witness of seizure, whereas PW-9 was
Dr. K.D. Singh, who held Post Mortem examination of the dead body of
the deceased and PW-10 was the Investigating Officer.
10. From the allegations made in the FIR, it appears that the
informant alleged that she heard hulla that a thief was caught and
beaten by the villagers near the bank of Dhobai River, upon which she
with her family members rushed to that place and there she found her
husband lying in injured condition but in her evidence in Court, she
has completely given goby to the story of thief as stated in the FIR. As
already noticed above, in her evidence she stated that she heard hulla
upon which she alongwith her family members went to the place of
occurrence and found that the accused persons were assaulting her
husband Ganesh, who was lying on the ground. The story of thief and
the presence of the villagers at the place of occurrence have totally been
omitted by the informant in her evidence from which it can very well be
inferred that she has deliberately attempted to suppress the real fact
and about the presence of the independent witness at the place of
occurrence.
11. From the evidence and materials on record it further
appears that the place of occurrence is said to be a lonely place, i.e. the
bank of Dhobai River and the time of occurrence is about 8-9 p.m., that
also in the month of November, i.e. in a winter season. At that time it
must be dark. The prosecution has not disclosed about the presence of
any light at the place of occurrence which can be said to be the source
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of identification of the accused persons by the witnesses at the place of
occurrence. There is nothing on the record to show that there was any
source of light at the place of occurrence, in which the prosecution
witnesses could witness the whole alleged occurrence and they could
identify the accused persons.
No doubt, the evidence of the eyewitnesses can not be
rejected solely on the ground that they are the close relatives of the
deceased but at the same time, in our view, when a large number of
independent witnesses were present at the place of occurrence then in
that case it was necessary for the prosecution to examine any of the
independent witness, who was present at the place of occurrence in
order to support the prosecution case. The evidence of the
eyewitnesses, who are close relatives, becomes doubtful in view of the
fact that admittedly both the parties were on inimical terms. No reason
has been assigned by prosecution as to why the villagers, who were
present at the place of occurrence at the time of alleged occurrence,
were not examined. The evidence of the eyewitnesses also becomes
doubtful since PW-1 has stated in her evidence that when he reached
at the place of occurrence, he found the deceased lying on the ground.
In such a situation, it can very well be inferred that this witness did not
see the actual assault made by some persons and he could see only
that the injured was lying on the ground.
12. Similarly, the informant, in her evidence, has stated that
when she reached at the place of occurrence, she saw some persons
were assaulting her husband and amongst the assailants, she could
identify these accused respondents. Therefore, it can very well be said
that there were several other persons also who assaulted the deceased.
Who were they; this question remained unanswered by the prosecution.
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13. In view of the above discussions, we are of the view that the
evidence of eyewitnesses, i.e. PWs 1 to 3 cannot be said to be wholly
reliable and from their evidence, two views are clearly possible. It may
be that some other persons were involved in assault of the deceased
but the said fact has been suppressed by the prosecution. We also find
that the story of theft as well as presence of the villagers at the place of
occurrence, as alleged in the FIR, has been completely given go by, by
the prosecution in course of trial for the reasons best known to it. This
also raises serious doubt in the veracity of the prosecution case.
Therefore, we come to the conclusion that the learned trial court rightly
acquitted the accused respondents from the charges leveled against
them. We do not find any merit in this appeal. Accordingly, the same is
herby dismissed.
(Amareshwar Sahay, J)
(R.R.Prasad, J)
Jharkhand High Court, Ranchi
Dated the 13th July 2009;
NAFR/Mukund/c.p. -3