Jharkhand High Court
Babu Lal Marik & Ors vs State Of Jharkhand on 8 November, 2017
Author: H.C. Mishra
Bench: H.C. Mishra, Ananda Sen
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.364 of 2006
with
Criminal Appeal (D.B.) No.245 of 2006
(Against the Judgment of conviction dated 23rd of January, 2006, and
Order of sentence dated 25th of January, 2006, passed by the Additional
Sessions Judge, F.T.C. No.-II, Deoghar, in Sessions Case No.107 of 2003.)
1. Babu Lal Marik
2. Mahendra Marik
3. Nakul Marik
4. Joga Marik
5. Bachha Marik ....... Appellants
[in Cr. Appeal (D.B.) No.364 of 2006]
1. Chhatish Marik
2. Lalu Marrik
3. Bhuma Marrik
4. Gopal Marrik
5. Sibu Marrik
6. Panchu Marrik
7. Jagdish Marrik
8. Sukan Marrik ....... Appellants
[in Cr. Appeal (D.B.) No.245 of 2006]
-Versus -
The State of Jharkhand ..... Respondent [in both cases]
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE ANANDA SEN
.....
For the Appellants : Mr. Rajiv Ranjan, Sr. Advocate
: Mr. Manoj Kumar, Advocate
: Mr. Deepankar, Advocate
: Mr. Niranjan Kumar, Advocate
For the State : Mr.Rakesh Kumar, APP.
: Mr. Sanjay Kumar Pandey-II, APP.
Reserved on : 01.11.2017 Pronounced on : 08.11.2017
H.C. Mishra, J.:- Both these criminal appeals arise out of the same Judgment
of conviction and Order of sentence, as such, they are heard together
and are being disposed of by this common Judgment.
2. Heard learned counsels for the appellants and learned
counsels for the State in both these appeals.
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3. Both these appeals arise out of the Judgment of conviction
dated 23rd of January, 2006, and Order of sentence dated 25th of
January, 2006, passed by the learned Additional Sessions Judge,
F.T.C. No.-II, Deoghar, in Sessions Case No.107 of 2003, whereby all
these appellants were found guilty and convicted for the offences under
Sections 147, 148, 302 / 149, 323 / 149, 452 / 149 and 427 / 149 of the
Indian Penal Code. Upon hearing on the point of sentence, all the
convicts were sentenced to undergo R.I. for life and fine of Rs. 5,000/-
each for the offence under Section 302 of the Indian Penal Code, R.I. for
5 years and fine of Rs. 3,000/- each for the offence under Section 452 of
the Indian Penal Code, imprisonment for one year each for the offences
under Sections 323 and 427 of the Indian Penal Code and R.I. for 3 years
each for the offence under Section 148 of the Indian Penal Code. No
sentence was passed for the offence under Section 147 of the Indian
Penal Code, and all the sentences were directed to run concurrently.
4. The prosecution case was instituted on the basis of the
fardbeyan of the informant, Mukund Marik, recorded on 15.10.2002 at
about 6.45 A.M., at village Biswani, P.S.-Mohanpur in the district of
Deoghar, wherein the informant has stated that on the previous day, i.e.,
on 14.10.2002 at about 4.00 P.M., all the named accused persons came
to the house of the informant variously armed and they committed
mischief by damaging the roof tiles in the house of the informant. The
informant kept himself concealed in the house. Again at about 8.00 P.M.
in the night, all the accused persons variously armed with lathi, bhujali,
bhala etc., forming unlawful assembly, assembled at the house of his
cousin Parmeshwar Mahto, and started assaulting the persons present
there, in which, Hori Marik suffered a bleeding injury on his head.
Bhagwan Singh @ Karu Singh, who had visited the house of
Parmeshwar Mahto for a feast, objected to the assaults made by the
accused persons, whereupon, all the accused persons started assaulting
him and he was brought near the house of Mahru Marik, where he was
assaulted badly and his hands and legs were tied, and he was put in the
courtyard of Mahru Marik, due to which he died. As to the cause of the
occurrence, it is stated that the occurrence had taken place due to land
dispute between the parties. On the basis of the fardbeyan given by the
informant, Mohanpur P.S. Case No. 135 of 2002, corresponding to G.R.
No. 570 of 2002 was instituted, for the offences under Sections 147, 148,
149, 452, 323, 324, 302, 427 and 504 of the Indian Penal Code, against all
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the 13 named accused persons and investigation was taken up. After
investigation, the police submitted the charge-sheet against the accused
persons.
5. After commitment of the case to the Court of Session,
charge was framed against all the accused persons for the offences under
Sections 147, 148, 302 / 149, 323 / 149, 452 / 149 and 427 / 149 of the
Indian Penal Code, and upon the accuseds' pleading not guilty and
claiming to be tried, they were put to trial.
6. In course of trial, 10 witnesses were examined by the
prosecution. The I.O. of the case has not been examined. The Lower
Court Record shows that after the prosecution evidence was closed, an
application under Section 311 of the Cr.P.C., was filed by the
prosecution for examining the I.O. of the case. The said application was
allowed by the Trial Court by order dated 7.6.2005, directing the
prosecution to examine the I.O. on the next two consecutive dates.
However, when the I.O. could not be examined by the prosecution even
thereafter, the prosecution evidence was closed.
7. P.W.-5 Mukund Marik is the informant of the case. This
witness has stated that the occurrence had taken place about 9½ months
ago on a Monday at about 4.00 P.M. He was in his house when all the
accused persons named by the this witness came to the house, using
filthy languages against him and thereafter they committed mischief in
the house by damaging the tiles of the roof of the house. This witness
kept himself confined in the house. Thereafter again at about 8.00 P.M.,
all the 13 accused persons assembled at the house of Parmeshwar Mahto,
armed with lathi, bhujali etc. Accused Gopal was armed with bhujali,
Panchu was armed with rod, Nakul was armed with sword, Bachha was
armed with bhala and others were armed with lathi. Babulal assaulted
Hori by danda on his head, causing bleeding injury and again he
assaulted on his shoulder. Bhagwan Singh @ Karu Singh intervened,
whereupon all the accused persons, dragged him to Neem tree and
started assaulting him. After killing him, they put him in the house of
Babulal Marik. He and other eyewitness saw the occurrence. In the
morning at about 7.00 A.M., the police came and this witness gave his
statement, which was read over to him, whereupon he put his thumb
impression. He has identified the accused persons present in the Court.
In his cross-examination, this witness has stated that the Police Officer
had visited the house of Babulal Marik and he was sitting there and other
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villagers were also surrounding him. This witness himself went to the
police officer. He had no knowledge, whether prior to that, anyone had
given information to the Police Officer or not. This witness has also
stated that near the Neem tree there is a Durga Mandap. The date of
occurrence was Mahanawami day of Durga Puja and this witness had
sacrificed one he-goat in his house. He has no knowledge whether any
sacrifice of he-goat was given in the house of Babulal Marik or not, but
he has stated that almost everyone sacrifices he-goat on the day of
Mahanawmi. In his cross-examination he has also stated that there was
no land dispute with the accused persons. He has further stated that the
deceased was of village Hirna and he had no property in Biswani village.
Parmeshwar Marik is the cousin of this witness. This witness has also
stated in his cross-examination that when the roof of his house was being
damaged, he entered his house and he came out after half an hour and
he did not go to the Police Station, and in the night also he remained in
his house. In the morning he woke up after the sun rise and after four
hours, the police had visited the village. He has also stated that he has
no knowledge about the rape case upon Karu @ Bhagwan Singh and
Bharat Mahto. He denied the suggestion that they had assaulted the
deceased Karu @ Bhagwan Singh and the accused persons have been
falsely implicated in this case.
8. P.W.-4 Hari Marik is the injured witness in the case. He has
stated that the occurrence had taken place on a Monday about eight
months ago at about 4.00 P.M. Accused persons started damaging the
roof tiles of Mukund Marik. He tried to prevent them, but in vein.
Thereafter at about 8.00 P.M., this witness and other persons were
present at the house of Parmeshwar Marik, when all the 13 accused
persons came and Babulal Marik assaulted him by lathi on his head and
hand. Karu Singh @ Bhagwan Singh tried to intervene, when the accused
persons dragged him away to the Neem tree, and they assaulted him to
death and tied him with rope and kept him in the courtyard of
Mahru Marik. The accused Bacha was armed with bhala, Nakul was armed
with farsa, Gopal was armed with bhujali, Panchu was armed with rod
and others were armed with lathi. He identified the accused persons
present in the Court. In his cross-examination this witness has stated that
his house is situated at a distance 5-6 hands from the house of
Mukund Marik and his courtyard is separate. Parmeshwar Marik's house is
also situated nearby. He has no knowledge whether Mukund Marik had
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gone to the Police Station or not. This witness has also stated that in his
cross-examination that Karu Singh had no property or relative in village
Biswani. This witness had not given any information to the police. After
the occurrence, he simply went to the house and in the morning he saw
Bhagwan Singh dead. This witness has also stated that there was no
enmity between both the parties. He has also stated that Mukund Marik is
his agnate. He had no knowledge that the deceased was a dreaded
criminal and had committed dacoity and rape in village Biswani, in which
case, he was in jail for 18 months. He has also stated that when
Karu Singh was being dragged he and other persons followed them, but
they were only onlookers while Karu Singh was being assaulted. He has
also stated that whole night he remained in his house and even in the
morning he did not go to inform the police. He has also stated that no
one had informed the police. This witness has further stated in his
cross-examination that near the Neem tree, there is a Durga Mandap, but
sacrifice of he-goats are not made there. He has denied the suggestion
that 10-12 he-goats were sacrificed on that day at the Durga Mandap or
near the Neem tree. He has also denied that for the occurrence of same
day, counter case was also filed against them. He has denied the
suggestion that the deceased was assaulted by the villagers while
committing crime, and when he died, the accused persons have been
falsely implicated in this case.
9. P.W.-3 is Parmeshwar Marik, who has stated that the
occurrence had taken place on a Monday about 8½ months ago at 4.00
P.M., and the other occurrence had taken place at 8.00 P.M. in the same
night. He was in his house when all the 13 accused persons had damaged
the roof tiles of the house of Mukund Marik. This witness tried to prevent
them, but in vein. On the same day at about 8.00 P.M., he was in his
house and Bhagwan Singh @ Karu Singh of village Hirna had visited his
house. Babulal Marik assaulted Hari Marik and all the 13 accused persons
were also present there. Bhagwan Singh intervened, whereupon all of
them apprehended him and started assaulting him. They dragged him to
the house of Mahru Marik and they tied him to a Neem tree and assaulted
him to death and kept him in the courtyard of Mahru Marik. He has
identified the accused persons present in the Court. In his
cross-examination, this witness has stated that Mukund Marik is his cousin
and his house is adjacent to the house of Mukund Marik. He has stated
that he along with 5-6 persons had seen the occurrence and thereafter
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they went to their houses. He did not advise Mukund Marik to go to the
Police Station. He has also stated that it was the day of Mahanawmi
during Durga Puja and near the Neem tree, there is a Durga Mandap.
Villagers used to sacrifice he-goats at the Durga Mandap, but on the date
of occurrence, no one had made any sacrifice. This witness has also
stated that there is no electricity in his village. The deceased had visited
his house on his own. He has denied the suggestion that the deceased
was hardened criminal. He has also denied the suggestion that the
deceased was ever jailed. He has also stated that there is no land
disputed with Chhatish Marik. This witness has also stated in his
cross-examination that when the deceased was being dragged, this
witness and other persons also followed them, but they did not inform
the police, and after the deceased died, they went to their houses. Even
on the next day, he did not go to the Police Station. There was a lot of
blood near the Neem tree. He has admitted in his cross-examination that
there is a counter case for the occurrence of the same day lodged by the
accused persons. He has denied the suggestion that the deceased was
killed by the villagers and while fleeing away, he had taken shelter in his
house and when he died, his dead body was kept at the house of
Mahru Marik and accused persons have been falsely implicated in this
case.
10. P.W.-1 is Doman Marik, who has stated that the occurrence
had taken place about 8 months ago on a Monday at about 4.00 P.M. and
thereafter at 8.00 P.M. in the night. He was in his house when all the
named 13 accused persons had damaged the roof tiles of the house of
Mukund Marik. Thereafter at 8.00 P.M. all these accused persons came to
the house of Parmeshwar Marik. They apprehended Bhagwan Singh @
Karu Singh at the house of Parmeshwar Marik and they dragged him
assaulting up to the house of Mahru Marik and they tied him with the
nearby Neem tree, killed him, and thereafter the accused persons put
him in the courtyard of Mahru Marik. He has identified the accused
persons present in the Court. In his cross-examination, this witness has
stated that the accused Nakul had assaulted the deceased by farsa,
Bacha Marik had assaulted him by rod, Gopal was armed with bhujali,
Panchu was armed with bhala and other accused persons were armed
with lathi. The entire cloth of the deceased was soaked with blood and
blood had fallen on the ground. The police had collected the blood
stained clothes. He has stated that he had no enmity with the accused
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persons and there is no land dispute. He has stated that he had not
informed anyone about the occurrence. He has also stated that the
deceased had sustained injury by bhala and also by bhujali and by lathi-
danda. This witness has stated that the deceased had visited the house
of Parmeshwar Marik for a feast. He has also stated that there was a
feast of Dushehara in the house of Parmeshwar Marik and he-goat was
sacrificed on that occasion. There was no deployment of police at Durga
Mandap. He had not gone anywhere to give the information about the
occurrence. He has stated that Mahru Marik is the father of the accused
Babulal Marik. He has denied the suggestion that the deceased was
murdered by other persons and the accused persons have been falsely
implicated in this case.
11. P.W.-2 Shakun Marik has also supported the prosecution case
as aforesaid, stating that at about 4.00 P.M., all the accused persons
damaged the roof tiles of the house of Mukund Marik, and thereafter, at
8.00 P.M. all the accused persons took away Bhagwan Singh @ Karu Singh,
assaulting him to the house of Mahru Marik and they tied him with the
Neem tree and they assaulted him to death and thereafter he was put in
the house of Mahru Marik. He has also identified the accused persons
present in the Court. In his cross-examination he has stated that
Mukund Marik is his own brother and all the brothers are separate. He
has also stated that Parmeshwar is his cousin, and the deceased was
their friend. He has denied the suggestion that there were more than
twenty cases on the deceased. He or his brothers had not gone to
Deoghar or Mohanpur and had not gone to the Police Station, nor had
given any information to the police. In the morning he saw lot of blood
near the Neem tree. He has denied the suggestion of any counter case of
the same date. He has also stated that there was no land dispute with
the accused persons. He has denied the suggestion that the deceased was
a hardened criminal, due to which he was murdered and due to enmity,
the accused persons have been falsely implicated in this case.
12. P.W.-6 Dhaneshwar Yadav and P.W.-7 Arjun Singh are the
seizure list witnesses stating that the police had seized a blood stained
plastic bag from the house of Mahru Marik. They have identified their
signatures on the seizure list, which were marked Exhibits- 1 and 1/1
respectively.
13. P.W.-9 Prasadi Mahto, is a co-villager, who has stated that
Karu Singh @ Bhagwan Singh was of Hirna village had died. He has no
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knowledge as to how he died. In his cross-examination by the defence,
this witness has stated that Karu Singh @ Bhagwan Singh was a hardened
dacoit and he was killed in connection with a dacoity.
14. P.W.-8 is Dr. Rameshwar Mahto, who had conducted the
post-mortem examination on the dead body of the deceased on
15.10.2002at about 1.00 P.M., and found the following ante-mortem injuries on the deceased:-
1. Multiple bruises on back shoulder and chest varying 1" x 1", 1" x 1/2 " and 1/2" x 1/2" .
2. Lacerated injury on left side of scalp 3" x 1" x bone deep.
3.Haematoma on the middle of scalp 2" x 2".
4. Haematoma on chest on left side 4"x3".
5. One punctured would on right eye brow from which brain matter came out.
On the dissection of skull - fracture of skull bone found at its middle of frontal bone and lower part of left side of frontal bone also.
Brain and meninges were pale.
On dissection of chest - there was blood clots in chest cavity. Left lung punctured by broken piece of ribs of left side and 5th to 9th ribs fractured. Both lungs pale. Heart empty.
On opening of abdomen - Abdominal cavity contained blood, spleen ruptured and pale.
Stomach contained liquid about 100 ml.
Liver and kidney were pale.
Urinary bladder - empty.
This witness has stated that the death was caused due to hemorrhage and shock as a result of above noted injuries caused by hard and blunt substance and punctured would No. 5, caused by penetrating and sharp weapon such as lathi and rod. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2.
15. P.W.-10 Dr. Vinod Kumar had examined the injuries of the injured Hari Yadav and had found the following injuries:-
1. Irregular swelling of near about 2 cm. in diameter with abrasion over it situated over the right half of forehead.-9-
2. Vague swelling and tenderness involving lower portion of right redial side of fore-arm. Clinically there was no fracture.
This witness has stated that both the injuries were simple in nature, caused by hard and blunt substance. He has identified the injury report to be in his pen and signature, which was marked Exhibit-3.
16. As stated earlier, the prosecution has not examined the I.O. of the case, in spite of giving indulgence by the Trial Court. After closing the prosecution evidence, the statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidences against them. The defence has not examined any witness, but has proved three documents, which are the certified copies of the F.I.R. of the counter case of the same date, being Mohanpur P.S. Case No. 136 of 2002, and of the charge-sheet and F.I.R. of rape case against the deceased and others, which were marked Exhibits-A, B and C respectively.
17. On the basis of the evidence on record, the accused appellants were convicted and sentenced by the Trial Court below, as aforesaid.
18. Learned counsels for the appellants have submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law, inasmuch as, the prosecution has not been able to bring home the charges against the accused persons beyond all reasonable doubts. It is submitted that in the present case, the F.I.R., the fardbeyan and the inquest report of the dead body of the deceased and the seizure list have not been proved and only the post-mortem report and the injury report have been proved as Exhibits 2 and 3 respectively. Exhibit-1 series is only the signatures of seizure list witnesses on the seizure list, which has not been proved. Learned counsels have submitted that even the I.O. of the case has not been examined and the defence has been vitally prejudiced due to non-examination of the I.O. Learned counsels have further submitted that though the witnesses have stated that the deceased was assaulted by bhala, bhujali, farsa and lathi etc., but no injury caused by any of these weapons was found on the deceased, as is apparent from the evidence of P.W.-8 Dr. Rameshwar Mahto and the post-mortem report, proved by him. It is also submitted by learned counsels that in the post-mortem report, no police case number is mentioned and as such
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there is nothing to connect the post-mortem report with this case. It is further submitted that none of the witnesses, including the informant had stated that they informed the police about the occurrence, rather they clearly stated that they had not informed the police and they remained in their houses, and as such, there is nothing on record to show as to how the information was given to the police, and even what information was given. Learned counsels also submitted that admittedly the deceased was an outsider and he had no enmity with the accused persons, and as such, there was no occasion for these accused persons to have assaulted the deceased to death, particularly when the persons with whom admitted enmity was there were also present there. Learned counsels also submitted that the witnesses supporting the prosecution case, are highly un-reliable, being closely related and no independent witness has supported the prosecution case, even though the occurrence is said to have taken place near Durga Mandap on the day of Mahanawmi during Durga Puja, on which date, the presence of large number of people at the time of occurrence cannot be ruled out. It is further submitted that the only independent witness, who has been examined in this case has not supported the prosecution case and has stated that the deceased was a hardened dacoit, who was killed in course of dacoity. Learned counsels, accordingly, submitted that the entire prosecution case is full of doubts and in the facts of the case, the appellants were entitled at least to the benefit of doubt.
19. Learned counsels for the State, on the other hand, have opposed the prayer and have submitted that P.Ws. 1 to 5, including the informant and the injured, have fully supported the prosecution case stating that all the accused persons had assaulted the deceased, causing his death and their ocular evidence is fully corroborated by the medical evidence of P.W.-8 Dr. Rameshwar Mahto and the post-mortem report, proved by him as Exhibit-2. Learned counsels for the State, accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, and both these appeals are fit to be dismissed.
20. Having heard counsels for both the sides and upon going through the record, we find that in the present case, the I.O. has not been examined by the prosecution, the F.I.R., the fardbeyan, the inquest report and the seizure list have also not been proved by the prosecution. P.Ws.-1 to 5 are all closely related brother / agnates / cousin and only
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they have supported the prosecution case. All the witnesses have deposed giving parrot like statements that all the accused persons damaged the roof tiles of the house of P.W.-5 Mukund Marik and similarly they have also stated that all the accused persons had assaulted the deceased causing his death. Though, all of them are the eyewitnesses to the occurrence, but none of them have stated about any specific assault made by any specific accused and only the omnibus statement is there that all the accused persons had assaulted the deceased. Though in his cross-examination, P.W.-1 Doman Marik has stated that Nakul had assaulted the deceased by farsa, Gopal had assaulted the deceased by bhujali and Panchu had assaulted the deceased by bhala, but no injury caused by either of these weapons have been found on the dead body of the deceased in the post-mortem examination. There are discrepancies in the evidences of these eyewitnesses also on the point as to which accused had assaulted with what weapon, inasmuch as, P.W.-1 Doman Marik has stated that Nakul had assaulted with farsa, whereas the informant, P.W.-5 has stated that Nakul was armed with sword. Though, P.W.-1 Doman Marik has stated that Bacha was armed with rod, P.W.-5 Mukund Marik has stated that Bacha was armed with bhala. All these witnesses have clearly stated that after witnessing both the occurrences which either took place at 4.00 P.M., or which had taken place in the night at 8.00 P.M., they remained in their respective houses and they did not go to inform the police. This is a mystery in the present case as to how the police was informed and how the police reached the place of occurrence, which could not be solved due to non-examination of the I.O. The seizure of blood stained plastic bag from the house of the accused Babulal Marik is of no consequence, inasmuch as, it is not the case of the prosecution or any of the witnesses that the dead body was carried or taken in the plastic bag. Admittedly, it was a day of Mahanawmi in Dushhera, during which, the sacrifice of he-goats are made in the villages, which could be carried in the plastic bag, and as such the presence of blood stained plastic bag is not of any consequence in the present case, unless the prosecution could prove that blood stains on the plastic bag were human blood, which fact has not been proved in the present case. The non-examination of any independent witness in the case has seriously impaired the credibility of the prosecution in the present case, in view of the fact that the presence of independent witnesses at the time of occurrence cannot be ruled out. The place of
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occurrence is near the Durga Mandap in Mahanawmi night of Durga Puja and the presence of large number of villagers at the place of occurrence cannot be ruled out. In that view of the matter, the non-examination of any independent witness makes the prosecution case absolutely doubtful. The Hon'ble Supreme Court of India has also taken a similar view in Harijana Thirupala Vrs. Public Prosecutor, reported in 2002(6) SCC 470, as follows:-
"15. -------. As to the non-examination of independent witnesses, though several independent persons had witnessed the incident, the High Court accepts the feeble explanation given by PW 7, the investigation officer, that none of them came forward to give evidence because of fear of the accused. Nothing has come in evidence that the appellants were notorious criminals or they were a terror in the village. The trial court took a right view that non-examination of independent witnesses seriously impaired the credibility of the prosecution case. The High Court, in our view, was not right in this regard in accepting the explanation given by PW 7. In relation to the overt acts of Appellants 1 and 2, the High Court was again not correct in ignoring the discrepancy which the trial court pointed out on the basis of conflicting evidence of PWs 1 and 2 on the one hand and that of the doctor on the other. ---------."
21. In the present case also there is nothing to show that the appellants were notorious criminals or they were terror in the village due to which the independent witness could not be examined. At the same time the presence of large number of villagers at the place of occurrence cannot be ruled out. In deed one independent witness, who has been examined has stated that the deceased was a hardened criminal and was killed in course of dacoity. The defence has also proved the certified copies of the charge-sheet and the F.I.R. against the deceased. Even though in the F.I.R., it is clearly stated that the occurrence had taken place due to land dispute between the parties, but all the witnesses, i.e., P.Ws.1 to 5, including the informant and the injured have stated that there was no enmity between the parties, which also makes the credibility of the witnesses very doubtful. At the same time the fact, that the ocular evidence of the eyewitnesses is not corroborated by the medical evidence and the post-mortem report, also cannot be ignored. We also find from the record that no charge was framed against the accused persons for any occurrence that had taken place at 4.00 P.M., in the village, rather all the charges relate to the occurrence of 8.00 P.M.
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22. In the facts of the case, we find that even though the interested witnesses have supported the prosecution case as eyewitnesses to the occurrence, there are ample scope of doubt due to the discrepancies in the testimony of the witnesses, which is again, not corroborated by the medical evidence of P.W.-8 Dr. Rameshwar Mahto and the post-mortem report, proved by him as Exhibit-2, as also by any independent witness. We are of the considered view that in the facts of this case, the prosecution has failed to bring home the charges against the accused appellants beyond all reasonable doubts, and the accused appellants were entitled at least to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law.
23. For the foregoing reasons, the impugned Judgment of conviction dated 23rd of January, 2006, and Order of sentence dated 25th of January, 2006, passed by the learned Additional Sessions Judge, F.T.C. No.-II, Deoghar, in Sessions Case No.107 of 2003, are hereby, set aside. The appellants namely, Babu Lal Marik, Mahendra Marik, Nakul Marik, Joga Marik, Bachha Marik, Chhatish Marik, Lalu Marrik, Bhuma Marrik, Gopal Marrik, Sibu Marrik, Panchu Marrik, Jagdish Marrik and Sukan Marrik, are given the benefits of doubt and are acquitted of the charges. The appellants Nakul Marik and Bachha Marik are in custody, let them be released and set at liberty forthwith, if their detention is not required in any other case. All the other appellants are on bail and they are discharged from the liabilities of their respective bail bonds.
24. Both these appeals are accordingly, allowed. Let the Lower Court Record be sent back forthwith along with the copy of the Judgment.
(H.C. Mishra, J.) Ananda Sen, J.:-
(Ananda Sen, J.) Jharkhand High Court, Ranchi.
Dated the 8th of November, 2017.
NAFR/ Amitesh