Jharkhand High Court
Kati Kisku @ Lakhi Ram Kisku vs The State Of Jharkhand on 24 March, 2018
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
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Cr. Appeal (DB) No.537 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.537 of 2016
(Against the Judgment of conviction dated 27th April, 2016 and Order of sentence
dated 02nd May, 2016, passed by the Additional Sessions Judge-VIII, Dhanbad, in
S.T. No. 74 of 2009.)
1.Kati Kisku @ Lakhi Ram Kisku
2.Rajesh Murmu .... Appellants
Versus
The State of Jharkhand ..... Respondent
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
.....
For the Appellants : Mr. K.N. Roy, Advocate Mr. Parijat Sinha, Advocate For the State : Mr. Ram Prakash Singh, APP .....
By Court.:- Heard learned counsel for the appellants and learned counsel for the State.
2. The appellants are aggrieved by the Judgment of conviction dated 27th April, 2016 and Order of sentence dated 02nd May, 2016, passed by the learned Additional Sessions Judge-VIII, Dhanbad, in S.T. No. 74 of 2009, whereby, both the appellants have been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, these appellants have been sentenced to undergo imprisonment for life and fine of Rs.5,000/- each, for the said offence.
3. The prosecution case was instituted on the basis of the fardbeyan of the informant Umesh Hansda, the brother of the deceased Tala Manjhi, recorded on 18.10.2006 at village Chandmari, P.S. Dhansar, District Dhanbad, at 8.30 A.M. in the morning, wherein he has stated that his brother Tala Manjhi was living along with the accused persons, viz., Mangala Manjhi, Kati Kisku and Rajesh Murmu. On 17.10.2006 all of them went out together and at about 07:00 P.M., and at about 8.00 P.M. in the night, he was informed that his brother Tala Manjhi had a quarrel with the accused persons, in course of which, the accused persons assaulted him by stone causing his death, on the PCC road near the house of Sukhlal Manjhi in the village. He has stated that in the night due to the fear they did not inform the police and in the morning when the police arrived at the place of -2- Cr. Appeal (DB) No.537 of 2016 occurrence, the fardbeyan was given by the informant, on the basis of which Dhansar P.S. Case No.673 of 2006, corresponding to G.R. No.3281 of 2006, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, against the three named accused persons, including these appellants, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case.
4. It appears that one of the co-accused was absconding in the case, and after commitment of the case to the Court of Session, charge was framed against both these accused for the offence under Section 302 of the Indian Penal Code, and upon both the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined six witnesses in the case, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased.
5. P.W.-2 Umesh Hansda is the informant in the case and the brother of the deceased. Though from the F.I.R., it is apparent that he was not the eye-witness to the occurrence, but this witness has tried to become the eye-witness to the occurrence, while deposing in the Court. He has stated that the occurrence had taken place on 17.10.2006 at about 07:00 to 07:30 P.M. in the evening. He was defecating near a pond when he saw the accused persons, including these appellants, assaulting his brother Tala Manjhi by stone. He has stated that the accused Kati Kisku was having the stone and accused Rajesh Murmu and Mangal Hembrom were holding his brother and all the three accused persons assaulted his brother by stone causing his death at the spot. Due to the night and due to fear, he did not inform any one or the police, and in the morning, when the police arrived, he gave his fardbeyan. He has identified his signature on the fardbeyan, which was marked Ext.-1/1. He has also proved his signature on the inquest-report. He has identified both the accused persons in the Court. In his cross-examination, this witness has stated that at about 07:00 to 07:30 P.M., while he was defecating, it had become dark and the occurrence had taken place at a distance of about 100 meters from him. After seeing the occurrence, he came to his house and took rest for one hour and thereafter he informed his mother about the occurrence. He has also stated that at the time -3- Cr. Appeal (DB) No.537 of 2016 of occurrence, the accused persons had assaulted his brother for about one hour but he was keeping mum while seeing the occurrence. He has denied the suggestion to have given false evidence.
6. P.W.-1 Nispati Manjhi and P.W.-3 Dashrath Hansda have also deposed before the Court as eye-witnesses to the occurrence, stating that they had seen both these accused assaulting the deceased by stone, causing his death at the spot. P.W.-1 Nispati Manjhi has also identified his signature as witness on the fardbeyan, which was marked Ext.-1/1. He has also proved his signature on the inquest-report. However, P.W.-1 Nispati Manjhi has admitted in his cross-examination that he had himself not seen the accused persons assaulting the deceased. P.W.-3 Dashrath Hansda has admitted in his cross-examination that at the time of occurrence, he was in his house and he usually goes to sleep at about 07:00 P.M. in the evening. He has also stated that when he heard the noise, at that time, he was sleeping. When he woke up on the noise, it was 10:00 P.M. in the night.
7. P.W.-4 Dr. Shailendra Kumar had conducted the post-mortem examination on the dead body of the deceased on 18.10.2006 and had found four lacerated wounds on the dead body of the deceased and several abrasions on the dead body. The meninges and brain matters were also lacerated. He has stated that the injuries were caused by hard and blunt substance, and the injuries on the head and the brain of the deceased were the cause of his death. He has identified the post-mortem report to be in his pen and signature which was marked Ext.-3.
8. P.W.-5 Shailendra is the I.O. of the case. He has stated that on 18.10.2006, he was posted at Dhansar Police Station as S.I., and he was given the charge of investigation of the case. He had gone to the place of occurrence and had recorded the statement of the informant Umesh Hansda, and he has identified the fardbeyan to be in his pen and signature, which was marked Ext.-1/2. He has also proved the endorsements on the fardbeyan which were marked Exts.-1/3 and 1/4 respectively. He recorded the re-statement of the informant. He also prepared the inquest report of the dead body, which he has proved to be in his pen and signature, and the same was marked Ext.4. He sent the dead body for post-mortem examination. He has given the details of the place of occurrence which is a PCC road in the -4- Cr. Appeal (DB) No.537 of 2016 village, where the dead body was found, and he had also found the clotted blood at the place of occurrence. He recorded the statements of the witnesses and due to his transfer, he handed over the charge of investigation on 24.05.2007. There is nothing of much importance in his cross-examination.
9. P.W.-6 Dinesh Murmu is the Police Officer who had only submitted the charge-sheet against the accused.
10. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein both these accused persons have denied the evidence against them. No witness however, was examined by the defence.
11. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, as none of the material witnesses are actually the eye-witness to the occurrence, and they have made material improvements in their statements given before the police. It is pointed out by the learned counsel that though P.W.-1 Nispati Manjhi has deposed as an eye-witness to the occurrence, but he has admitted in his cross-examination that he had not seen the accused persons assaulting the deceased. Similarly, P.W.-2 Umesh Hansda, who is the informant in the case, and the brother of the deceased, has also tried to become the eye-witness to the occurrence, as according to the F.I.R., he was only informed about the occurrence. In his cross-examination also he has admitted that after seeing the occurrence, which took place for about one hour, he went to his house and he took rest for another one hour and then he informed his mother about the occurrence, which is absolutely an unnatural conduct for the brother of the deceased. Learned counsel accordingly, submitted that even the evidence of P.W.-2 Umesh Hansda is not worth reliance. As regards P.W.-3 Dashrath Hansda, it is pointed out by the learned counsel that though he has also tried to become the eye-witness to the occurrence, but he has admitted in his cross-examination that he had slept after taking his meals in his house at 07:00 P.M., and when he woke up on the noise, it was 10:00 P.M. in the night. The occurrence had taken place at about 07:00 to 07:30 P.M. in the night and as such, this witness is not at all the eye-witness to the occurrence. Learned counsel accordingly, submitted -5- Cr. Appeal (DB) No.537 of 2016 that none of the material witnesses examined by the prosecution are actually the eye-witnesses to the occurrence, and since they have falsely tried to become the eyewitnesses, their evidences are absolutely unreliable and untrustworthy. Learned counsel accordingly, submitted that it is a fit case in which both the accused ought to have been acquitted by the Trial Court below.
12. Learned counsel for the State, on the other hand, has opposed the prayer submitting that the prosecution case is supported by the three eyewitnesses, namely, P.W.-1 Nispati Manjhi, P.W.-2 Umesh Hansda and P.W.-3 Dashrath Hansda, and all these witnesses had seen both these accused assaulting the deceased by stone, causing his death at the spot. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-4 Dr. Shailendra Kumar and the post-mortem report proved by him, which shows that there were several lacerated wounds and abrasions on the dead body of the deceased, causing laceration even in the brain matter which was the cause of death of the deceased. Learned counsel accordingly, submitted that prosecution has been able to bring home the charge against both the accused beyond all reasonable doubts.
13. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is supported by three material witnesses, who are P.W.-1 Nispati Manjhi, P.W.-2 Umesh Hansda, the informant and the brother of the deceased, and P.W.-3 Dashrath Hansda, and all these three witnesses have deposed in the Court claiming to be the eye-witness to the occurrence, stating that they had seen the accused persons assaulting the deceased by stone causing his death at the spot. The conduct of P.W.-2 Umesh Hansda, who is the informant in the case, is very doubtful and untrustworthy, in as much as, in the F.I.R., he has claimed that he was only informed about the occurrence, but in the Court he has deposed as an eye-witness to the occurrence, stating that he had seen the occurrence while he was defecating near the place of occurrence. This witness has admitted in his cross-examination that the occurrence had taken place for about one hour during which he kept mum and raised no alarm and thereafter he came to his house and took rest for one hour and then he informed his mother. His conduct is quite unnatural and the evidence of this -6- Cr. Appeal (DB) No.537 of 2016 witness is not trustworthy at all. So far as P.W.-1 Nispati Manjhi is concerned, he has himself admitted in his cross-examination that he had not seen the accused persons assaulting the deceased. Similarly, the evidence of P.W.-3 Dashrath Hansda also shows that though he has supported the case as an eye-witness to the occurrence, but in his cross-examination, he has admitted that at the time of occurrence he was sleeping in his house and he woke up on noise only at about 10:00 P.M., by which time the occurrence was already over. We have also looked into the case-diary available in the Lower Court Record, which clearly shows that none of these witnesses had given their statements before the police as eye-witness to the occurrence, rather all of them were only hearsay witnesses and still, they have tried to become the eye-witnesses of the occurrence in the Court, making material improvements over their statements given before the police. None of these witnesses are trustworthy and the conviction and sentence of the appellants cannot be sustained on the basis of the evidence of these witnesses.
14. For the foregoing reasons, the impugned Judgment of conviction dated 27th April, 2016 and Order of sentence dated 02nd May, 2016, passed by the learned Additional Sessions Judge-VIII, Dhanbad, in S.T. No. 74 of 2009, convicting and sentencing the appellants Kati Kisku @ Lakhi Ram Kisku and Rajesh Murmu, for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, both these appellants are found not guilty and they are acquitted of the charge. Both these appellants are in custody, undergoing the sentence. Let them be released and set at liberty forthwith, if their detention is not required in any other case.
15. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, the 24th March, 2018.
Birendra / R.P./NAFR