JUDGMENT
Lakshman Uraon, J.
1. The sole appellant Sukhi Ram Lohar has preferred this Jail Appeal against the judgment and order of conviction and sentence dated 27th May, 1997, passed by the learned Additional Sessions Judge, Seraikella, in Sessions Trial No. 85 of 1993, arising out of G.R. No. 331 of 1992, whereby and whereunder, he has been convicted for the offence under Section 302 of the Indian Penal Code and sentence to undergo imprisonment for life.
2. The prosecution case has arisen on the basis of the Fard-beyan (Ext. 2) of the informant Baishakhi Devi (PW-1), wife of deceased Kanta Lohar, recorded on 8-6-1992 at 10.00 hours at Village-Udaipur, P. S. Gamharia, by R. N. Sinha, A.S.I. of Gamharia Police Station, wherein, the informant has alleged that she was sleeping on her courtyard along with her husband and children in the night of 7-6-1992 at Village-Udaipur, Police Station-Gamharia, District-West Singhbhum. At about 11.00 p.m. in the night she heard the cry of her husband and woke up. She saw this appellant assaulting on the head of her husband, resulting his death. She awakened Sajni Loharin (PW-4), who was also sleeping in the courtyard, and both of them tried to lift Kanta Lohar but he had already died. The alleged murder occurred due to the differences regarding Babool tree and landed properties.
3. The prosecution in support of its case has examined altogether nine witnesses to bring home the charges, levelled against the appellant. PW-1 Baishakhi Loharin is the only eye-witness, who was sleeping in her courtyard along with her husband (deceased) and children. PW-2 Putu Lohar, cousin brother of the deceased, is a hearsay witness, who was informed by PW-3 Arun Lohar and PW-6 Shikar Manjhi that this appellant murdered Kanta Lohar, PW-2 is a seizure list witness and is also a witness on the inquest report. PW-3 Arun Lohar and PW-6 Shikar Manjhi have denied to have informed PW-2 about the occurrence and both of them have been declared hostile by the prosecution, although PW-3 is the cousin brother of the deceased, PW-4 Sajni Loharin, wife of PW-3 Arun Lohar, is a tendered witness. PW-5 Ghasi Ram Lohar is a seizure list witness in respect to the seized axe and blood stained soil. PW-7 Ram Narayan Sinha is the Investigating Officer and PW-9 is Dr. Yogendra Nath, who has conducted the postmortem examination on the dead body of Kanta Lohar. PW-8 Surendra Nath Mahto is another tendered witness, who is Mukhiya of the village. The appellant has not examined any witness. The only plea taken by him is that he is innocent and has been falsely implicated in this case, as the lady (informant) herself is a lady of questionable conduct. She used to flee away without informing her husband frequently and there was quarrel in between them. The learned Additional Sessions Judge, Seraikella, relied the evidence of the informant and extra-judicial confession, made by this appellant before PW-3 Arun Lohar and PW-6 Shikar Manjhi as also this ocular evidence 6f PW-1, corroborated by Dr. Yogendra Nath (PW-9). The I.O. seized the blood stained axe, which was found at the place of occurrence and prepared seizure list (Ext. 5) on which Putu Lohar (PW-2) and Ghasi Ram Lohar (PW-5) had signed (Exts. 1/1 and 1/2), They have also signed on the seizure list of seized blood stained soil from the place of occurrence (Ext. 5) on which both the witnesses i.e. Putu Lohar and Ghasi Ram Lohar have signed (Exts. 1/3 and 1/4). The inquest report (Ext. 4) was also prepared by the I.O. (PW-7), which was found outside the house of the informant at Village-Udaipur on the next morning i.e. 8-6-1992 on which also Putu Lohar (PW-2) and Arun Lohar (PW-3) have signed (Exts. 5 and 6 respectively). The Post Mortem Report (Ext. 6) was prepared by PW- 9 Dr. Yogendra Nath. The learned Court below on the basis of these evidence on record convicted the appellant for the offence under Section 302 of the Indian Penal Code and sentenced him thereunder.
4. The learned Amicus Curiae Mr. Ram Pratap Singh, who assisted the Court on behalf of the appellant Sukhi Ram Lohar, has submitted that the sole eye-witness Baishakhi Loharin (PW-1), wife of the deceased Kanta Lohar, is not specific as to whether she is the eye-witness regarding the manner of the alleged occurrence. In the Fard-beyan she has deposed that she heard the cry of her husband and rushed there. On the other hand, she has deposed in Court that she saw the appellant fleeing away. On the contrary the appellant is the elder brother of the deceased Kanta Lohar. He was inside his house throughout the night and also in the morning of 8-6-1992 he was present in his house. Therefore, the question of fleeing away is belied by her own evidence. She has also deposed in Court that at night the Mukhiya Surendra Nath Mahto (PW 8) went there to whom she narrated the entire story and at night there was consultation amongst themselves and a document was written by the Mukhiya on which the villagers and the informant gave their signatures and L.T.Is., which was handed over to the police by the Mukhiya. PW 1 has deposed that in the morning on 8-6-1992 her statement, was recorded. The I.O. took this statement and the statement, recorded by the Mukhiya, assuring that he will write it in a better manner on which also she gave her L.T.I. The learned Amicus Curiae has argued that the first statement, which was recorded at the village by the Mukhiya, has been suppressed and purposely the Mukhiya Surendra Nath Mahto (PW 8) has been tendered by the prosecution. Although her statement was recorded on 8-6-1992 by the I.O. but the I.O, assured her that he will write the Fard-beyan at the police station nicely. The suppression of that first information creates doubt in the prosecution case, as there is no eye-witness, although there are houses of other villagers in the village, who had not come to corroborate the case of the prosecution. PW 2 Putu Lohar, who has also signed on the Fard-beyan (Ext. 2), is a hearsay witness, who was informed by PW 3 Arun Lohar and PW 6 Shikar Manjhi that this appellant gave axe blow on the head of Kanta Lohar, resulting his death. But both these witnesses i.e. PW 3 and PW 6 have been declared hostile and hence the hearsay evidence of PW 2 can not be considered as a substantive piece of evidence in the eyes of law. It was also argued that the extra-judicial confession is alleged to have been made in presence of Arun Lohar and Shikar Manjhi before Puttu Lohar (PW 2) but this confessional statement, made before him, could not be substantiated, which cannot be considered as evidence, treating it extra-judicial confession, made by this appellant before these witnesses. Moreover, in course of examination under Section 313 of the Code of Criminal Procedure, this evidence regarding exra-judicial confession made by this appellant before PW 2, PW 3 and PW 6 were not explained and hence it cannot be considered as evidence, which has erroneously been considered by the learned Court below and this fact has also been suppressed in the Fard-Beyan. It has further been submitted that PW 1 did not disclose the alleged occurrence to any other villager, except the Mukhiya and the I.O. PW 4 Sajni Loharin, who was also sleeping on the courtyard and was informed by PW 1, is a tendered witness. The learned Amicus Curiae on this point has relied on a case, reported in 1996(5) SCC 369 : (1996 Cri LJ 3842 : AIR 1996 SC 3471) (Alil Mollah v. State of West Bengal). On these grounds, it was urged that the appellant, who is in custody since 9-9-1990, deserved acquittal, giving him benefit of doubt.
5. The learned A.P.P. has submitted that it was night at about 11.00 p.m. The courtyard of the appellant and the informant is common, intervened by the common courtyard of PW 3 Arun Lohar, who is also elder brother of the deceased. At night it was not possible that except the informant, other villagers, including PW 4, could have witnessed the manner of the alleged occurrence. The appellant has made extra judicial confession before PW 2 Putu Lohar. The Investigating Officer found blood stained axe in the courtyard, which is the place of occurrence. The doctor (PW 9), who conducted the autopsy on the dead body of Kanta Lohar, has found incised wound over right temporal scalp behind right ear, caused by sharp cutting weapon and abrasion caused by hard and blunt substance. The death was within 24 hours, which corresponds the time of the alleged occurrence. The learned Additional Sessions Judge has considered all these evidence and has rightly convicted and sentenced the appellant under Section 302 of the Indian Penal Code, as there was strained relationship due to Babool tree and landed properties in between the deceased and the appellant.
6. There is no eye-witness of the alleged occurrence, except the informant (PW 1), who is wife of the deceased. She was sleeping with her husband Kanta Lohar (deceased) and children on the courtyard in the night of 7-6-1992. At about 11.00 p.m. at night her husband while sleeping was given axe blow on his head by this appellant. On the loud cry of her husband, she woke up and saw this appellant assaulting with axe on the head of her husband. In the Fard-beyan she has mentioned that Sajni Loharin (PW 4) was also sleeping in the courtyard to whom she awakened and brought near her injured husband. Both of them tried to lift Kanta Lohar but he had already died. In her deposition, PW 1 has deposed that on her alarm, PW 3 Arun Lohar and his wife PW 4 Sajni Loharin rushed there, who were sleeping inside the room. She informed the Mukhiya who came to her house and a paper was written on the information, given by this witness (PW 1) on which she gave her L.T.I. and the other villagers also gave their L.T.Is. At night she did not go to the police station. PW 3 and PW 4 also remained at home throughout the night and at night there was consultation in between them as to how the case should be lodged. In the morning the Mukhiya went to the police station along with the written paper and handed over the same to the police. That original First Information Report, which was actually the First Information, has been suppressed by the prosecution, which creates doubt in the prosecution story itself. It was argued that this Fard-beyan (Ext.2) is the substituted Fard-beyan, after it was written nicely, which took much time for concoction and embellishment in the prosecution case. There seems to be some substance only because the Village Mukhiya Surendra Nath Mahto (PW 8) is a tendered witness. Had he been examined in chief by the prosecution, the real prosecution story which was written first at night and was handed over to the police in the morning would have come to light. Putu Lohar (PW 2) and Arun Lohar (PW 3) are not the eye witnesses rather they are hearsay witnesses. PW 3 who is the elder brother of the deceased and had got his house adjacent to the informant’s house, having common courtyard, is a hostile witness. He has denied that there was any blood stained axe on the courtyard and Sukhi Ram Lohar (appellant) has confessed before him. PW 2 had also not gone to him. The confessional statement, made before PW 2 Puta Lohar, could not be corroborated by any other village witness. Moreover, the evidence regarding extra-judicial confession, made by this appellant before PW 2 Putu Lohar was not explained in his examination under Section 313 of the Code of Criminal Procedure and hence it can not be relied as a substantive piece of evidence in convicting the appellant. PW 3, a hostile witness, had not gone to PW 2 Putu Lohar. It was dark night and in the courtyard there was no Dhibri or Diya burning nor there was any lantern burning. In the morning when this witness PW 3 met PW 1 Baishakhi Loharin, at that time she did not disclose the name of the appellant as assailant. PW 3 Sajni Loharin, Gotani of the informant, who is a tendered witness, did not see Kanta Lohar (deceased), although she was in her house.
7. PW 9 Dr. Yogendra Nath on 9-6-1992 conducted autopsy on the dead body of Kanta Lohar and found the following ante-mortem injuries :-
(A) Incised wound :
(i) 4 cm. x 2 cm. x Cranial cavity over right temporal scalp behind the right ear.
(B) Internal:
Contusion of forehead scalp over an area of 6 x 6 cm. On top of scalp 6 x 3 cm. On right occipital scalp. 2 x 2 cm. There was fracture of right temporo-occipital bone with cut-fracture 4 x 11/2″ cm. with cutting the brain underneath. There was blood and blood clots under cranial cavity. There was fracture of right zygomatic bone. Contusion of right chest-front linear part 8 x 4 cm. with fracture of sternum.
(C) Abrasion :
2 x 1 cm. on right abdomen front near coastal margin.
The Doctor opined that Injury No. (A) cut fracture of bone and cutting the brain underneath was due to heavy sharp cutting weapon like Tangi. The rest injuries were caused by hard and blunt substance. The death was within 24 to 28 hours from the time of post-mortem examination. Ext. 6 is the Post Mortem Report in the pen and signature of this witness. He could not say as to whether Injury No. (A) was caused in sleeping condition or moving condition. He opined that any person sustaining this injury may survive up to 24 to 36 hours. The doctor found clothes on the dead body, which were handed over to the Constable. Those clothes were not blood stained and were also not seized.
8. The inquest report (Ext. 4) prepared by the I.O., shows that the dead body was found on the cot at the place of occurrence.
He saw only one bleeding injury near the left ear. He saw one old Dhoti and Janghia on the dead body. The inquest report does not disclose as to whether Dhoti and Janghia were blood stained rather by the side one blood stained axe was found.
9. PW 9 Ram Narayan Sinha had gone to Village-Udaipur on 8-6-1992. He was informed by someone else that Kanta Lohar was murdered in his courtyard. He has not deposed that the Mukhiya Surendra Nath Mahto (PW 8) informed him at the police station and from there he went to the place of occurrence i.e. Village Udaipur. He saw the dead body of Kanta Lohar, recorded the Fard-beyan of the informant in presence of Putu Lohar and also prepared inquest report of the dead body. He seized blood stained soil and axe at the place of occurrence, which is the open courtyard of the house of the informant. On rurnour that murder has been committed, he entered S.D. Entry No. 166 dated 8-6-1992 and proceeded for Village-Udaipur. He was not handed over any paper, written by the Mukhiya on the statement given by PW 1 Baishakhi Loharin. The appellant was arrested at about 1.30 p.m. on that day i.e. 8-6-1992 who was confined by the villagers but this statement has not been mentioned in the case diary by this witness (PW 7).
10. When the evidence of the sole eyewitness (PW 1) is.” considered, I find that at night she never disclosed the matter to any other villager. She has given contradictory statement that PW 4 was sleeping on the same courtyard and at the same breath, in Court she has deposed that Arun Lohar (PW 3) and his wife Sajani Loharin (PW 4) were sleeping inside the house. It is also contradicted as to whether she awakened Sajani Loharin and brought her near the dead body of her husband, who tried to lift him or on her alarm PW 3 and PW 4, who were sleeping inside the room, rushed to the courtyard. At night the Mukhiya (PW 8) was informed, who came to the place of occurrence. PW 8 along with PW 3, PW 4 and PW 1. who were present at night at the place of occurrence, had consulted how to institute a case. This statement of PW 1 is very clear that the Fard-beyan was concocted only to implicate the appellant in this murder case. On the other hand it has been argued by the learned Amicus Curiae that Baishakhi Loharin herself used to flee away without the knowledge of her husband, for which there was frequent quarrel in between them. The statement, which was written after consultation by the Mukhiya, was not handed over to the Investigating Officer as the Investigating Officer (PW 7) did not receive any paper nor he was informed on 8-6-1992 at the police station rather on rumour that Kanta Lohar was murdered, he entered S.D. Entry and went to Village-Udaipur and recorded the Fard-beyan, which is the basis of the present case. The strained relationship between the appellant and the deceased regarding Babool tree and landed property could not be corroborated even by the full brother pf the deceased, namely, Arun Lohar (PW 3). He had no grievance regarding any share of Babool tree and the landed property as all the three brothers, namely, the deceased Kanta Lohar, PW 3 Arun Lohar and the appellant Sukhi Ram Lohar are living separately, having common courtyard. At night on 7-6-1992 what was the cause of sleeping of PW 1 Baishakhi Loharin on the open courtyard when the other two brothers of the deceased i.e. the appellant and PW 3 Arun Lohar were sleeping inside the room along with their families. At night there was no source of identification, of accused as there was neither any Dhibri nor any lantern burning in the courtyard. While the informant and her husband were sleeping, in that situation the assailant went there and assaulted with axe only once, which is Injury No. (A) and the other injuries are caused by hard and blunt substance. The other injuries caused by hard and blunt substance could not be explained by the sole eye witness (PW 1) Baishakhi Loharin. She has deposed that when she woke up on hearing the loud cry of her husband, she saw the assailant fleeing away. It is a mystery that the assailant left the blood stained axe at the place of occurrence. PW 1 has deposed that when she woke up on the loud cry of her husband, she saw appellant fleeing away but the appellant was inside the house throughout the night and even in the morning he was found in his home, who was arrested by the I.O.. This creates doubt in my mind that the assailant might be someone else, who fled away leaving axe at the place of occurrence. PW 3 and PW 4, who have got their house adjacent to the house of the informant, on one side and the house of the appellant on the other side having common courtyard, did not come out of the house at night rather they remained sleeping. The appellant was in his house throughout the night and even in the morning he was in his house. In my mind it haunts that due to loose character of the informant (PW 1) she along with her children and husband slept at night in the open courtyard whereas appellant and another brother Arun Lohar (PW 3) were sleeping inside the house. Someone, who might have come to elope PW 1, assaulted the deceased with axe and with hard and blunt substance on the person of Kanta Lohar who died at the spot. The statement of PW 1 that she awakened PW 4 Sajani Loharin and brought her near the dead body seems to be the true. Sajani Loharin was not sleeping in the courtyard whereas her husband PW 3 had no knowledge about the alleged occurrence. Even the cousin brothers i.e. PW 2 and PW 5 have not corroborated the evidence of PW 1. I also find that her ocular evidence does not get support from the medical evidence, as the doctor (PW 9) besides one incised wound, caused by a sharp heavy cutting weapon like axe, has also found so many abrasions and contusions caused by hard and blunt substance. The author of these injuries, mentioned as Injury Nos. (B) and (C) in the Post Mortem Report (Ext. 6) is not corroborative and, as such, it creates doubt in my mind that this appellant is the assailant, who assaulted on the person of Kanta Lohar, resulting his death. The testimony of single eye witness PW 1 Baishakhi Devi (informant) in the facts and circumstances, as considered by me, is wholly unreliable, as the evidence regarding extra-judicial confession made by this appellant before PW 2 Putu Lohar was not explained in his examination under Section 313 Cr. P.C. and also that extra-judicial confession could not be corroborated by other interested witnesses i.e. PW 3 and PW 6, who are hostile witnesses. The learned Additional Sessions Judge has not considered these contradictory statements of PW 1 and also suppression of the very first information, handed over to the police, has erroneously relied the extra-judicial confession made by this appellant without any corroboration by any single witness, examined by the prosecution. In view of this considered view, I find that the judgment and order of conviction and sentence, passed by the learned Additional Sessions Judge, Seraikella, in Sessions Trial No. 85 of 1993, suffers from many legal infirmities and, as such, the same cannot be sustained. In the result, I find merit in this Criminal Appeal, which is, accordingly, allowed and the judgment and order of conviction and sentence, passed by, the learned Additional Sessions Judge, Seraikella, in Sessions Trial No. 85 of 1993, is hereby set aside. As the appellant is in custody, he is ordered to be released forthwith from the custody, if not wanted in any other case.
S.J. Mukhopadhaya, J.
11. I agree.