Jharkhand High Court
Amin Manjhi & Ors. vs State Of Jharkhand on 2 July, 2013
Author: D.N. Patel
Bench: D. N. Patel, Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 885 of 2002
Against the judgment and order of conviction and sentence both dated 25th
June, 2002, passed by Sri B.K. Goswami, learned 2nd Additional Sessions
Judge, Seraikella, in Sessions Trial No. 25 of 1995, arising out Gamharia
P.S. Case No. 65 of 1994.
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1. Amin Majhi
2. Ganesh Majhi ...... Appellants
Versus
The State of Jharkhand ...... Respondent
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For the appellant: Miss Amrita Banerjee, Advocate
For the State: Mr. Ravi Prakash, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE D. N. PATEL
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
Oral order: Dated 2nd July, 2013
Per D.N. Patel,J.:
1. The present appeal has been preferred against the judgment and order of conviction and sentence, dated 25th June, 2002, passed by learned 2nd Additional Sessions Judge, Seraikella, in Sessions Trial No. 25 of 1995, whereby, both the appellants, namely, Amin Majhi and Ganesh Majhi, have been convicted for the offence under Section 302 of the Indian Penal Code to be read with Section 34 thereof and sentenced to undergo rigorous imprisonment for life.
Both of them have also been imposed with a fine of Rs.10,000/- each and in default of payment of fine, further imprisonment of six months has been awarded against each of them.
2. It is the case of the prosecution that on 11th December, 1994 at 10.30 a.m. the informant Gobind Majhi (PW 4) gave his Fard-beyan to the police that his father Sripat Majhi (deceased) was going to Village- Debadih on 10th December, 1994 at about 4.00 p.m. For offering Puja and Jharphook, after instructing Narayan Murmu (PW
2), Dilip Murmu (PW 8) and one Bengal Hansda to reach at the bridge at Village Bongadungri. Father of the informant reched at the said bridge earlier and was waiting for arrival of Narayan Murmu (PW 2) and Dilip Murmu (PW 8). In the meantime, the accused persons arrived at Bongadungri bridge and attacked the father of the informant and cut his throat by Bhujali blows. It has been further 2. stated that while the accused persons were cutting the throat of his father, Dilip Murmu (PW 8) also arrived at the scene of offence, but, by that time his father was dead. Both the accused persons threatened Dilip Murmu (PW 8) of dire consequences and thereafter, fled away from there. It has been further stated by the informant that Narayan Murmu and Bengal Hansda also reached the place of offurrence shortly after the incident. It is further alleged that the motive for the alleged murder is the family dispute and land dispute, which is going on in the court.
3. On the basis of the the aforesaid Fard-beyan/ statement, First Information Report was lodged on 11th December, 1994 at 18 hours (6.00 p.m.). Thereafter, the investiation was carried out by the police and on the basis of the evidences, collected during the course of investigation, charge sheet was submitted against both the appellants-accused and the case was committed to the court of sessions where the case was numbered as Sessions Trial No. 25 of 1995 and on the basis of the evidence and depositions, given by the prosecution witnesses i.e. PW 1 to PW 10, the learned trial court has passed the impugned judgment and order of conviction and sentence against both the appellants, namely, Amin Majhi and Ganesh Majhi, convicting both of them for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code for causing murder of Sripat Majhi and sentencing them to undergo rigorous imprisonment for life. Both the appellants-accused have also been imposed with a fine of Rs.10,000/- each and in default of payment of fine, to undergo imprisonment for six months.
4. We have heard learned counsel for the appellants, who has submitted that the learned trial court has not properly appreciated the major omissions, contradictions and improvements in the depositions of the prosecution witnesses, since the so called sole eye witness i.e. P.W. 8 is, in fact, not the eye witness at all, especially looking to paragraph no.13 of his deposition. It is also submitted by the learned counsel for the appellants that the police has not come out with clean hands, because as per the sole eye witness, namely, Dilip Murmu (PW 8), he and two others had gone to the police station on the date of incident i.e. on 10th December, 3. 1994 at about 7.00 p.m. and they had stated before the polcie that Sripat Majhi has been murdered and his throat has been cut. But, the police has recorded First Information Report on 11th December, 1994 at 18 hours. Thus, the so called First Information Report is also a concocted document. Moreover, the Investigating Officer has not been examined as a prosecution witness, which is fatal in nature, looking to the deposition of PW 8 and, therefore, PW 8 is unreliable and untrustworthy witness. The informant (PW 4) is also a hearsay witness, who has stated that he is son of the deceased and he was informed by Dilip Murmu (PW 8) about the occurrence. Gobind Majhi (PW 4) is also a hearsay witness. PW 5 is a hostile witness and has not supported the case of the prosecution. It is also submitted by the learned counsel for the appellants that PW 10, who is a Clerk of some Advocate, was never cited as a witness in the charge sheet and, as such, he cannot prove First Information Report, Fard-beyan or signature of the police. But, despite these facts, the learned trial court has marked the First Information Report and Fard-beyan as Ext. 5 and Ext. 4. This type of "universal witness" ought not to have been examined by the learned trial court otherwise any person will come as a witness in any trial, even though he is not knowing the facts of the case. It is further submitted by the learned counsel for the appellants that in fact, there is no evidence at all against these two appellants an the prosecution has failed to prove the offence of murder, to have been committed by these appellants, beyond reasonable doubt. This aspect of the matter has also not been properly appreciated by the learned trial court and hence also, the impugned judgment and order of conviction and sentence, passed by the learned trial court, deserves to be quashed and set aside.
5. We have heard learned Additional Public Prosecutor, who has submitted that the case of the prosecution is based upon the deposition of eye witness Dilip Murmu (PW 8), who has clearly stated that he saw these two appellants committing murder of Sripat Majhi. It is further stated that these appellants had given threat to Dilip Murmu (PW 8) and, therefore, Dilip Murmu (PW 8) fled away from the scene of occurrence. It is further submitted that the murder has taken place on 10th December, 1994 at 16 hours and the 4. informant gave his statement before the police on 11th December, 1994 at 10.30 a.m. and the First Information Report was lodged at 18 hours on 11th December, 1994. It is also stated that looking to the cross-examination of this P.W. 8, nothing is coming out in favour of these appellants and moreover, the medical evidence, given by PW 1, is corroborative to the deposition, given by P.W. 8. This aspect of the matter has also been properly appreciated by the learned trial court and hence the impugned judgment and order of conviction and sentence, passed by the learned trial court, may not be interfered with.
6. Having heard learned counsel for both the sides and looking to the evidences on record, it appears that the incident had taken place on 10th December, 1994 at about 16 hours. Govind Majhi (PW 4) has stated before the police of Gamharia Police Station (District- Seraikella) that his father Sripat Majhi (deceased) was going to Village- Debadih for offering Puja, who instructed Narayan Murmu (PW 2), Dilip Murmu (PW 8) and Bengal Hansda to reach at the bridge nearby the Village- Bongadungri. Father of the informant (PW
4) reached at the bridge earlier and was waiting for P.W. 2 and P.W.
8. In the meantime, appellants-accused came at the bridge, attacked Sripat Majhi (deceased) and cut his throat by sharp cutting instrument, known as "Bhujali". PW 4 has further stated before the police that Dilip Murmu (PW 8) arrived at the scene of occurrence when the assault was going on. PW 8 tried to interfere, but, the accused gave threat to PW 8 of dire consequences and, therefore, PW 8 had ran away, who came later on at the place of occurrence. Meanwhile, accused had also fled away. On the basis of this information, the First Information Report was lodged on 11th December, 1994 at 18 hours and on the basis of the evidences, collected during investigation, charge sheet was filed and the case was committed to the court of sessions where it was numbered as Sessions Trial No. 25 of 1995 and on the basis of the deposition, given by PW 1 to PW 10, the learned trial court has arrived at a conclusion that the prosecution has proved the offence of murder of Sripat Majhi, committed by these two appellants, beyond reasonable doubt and, therefore, has punished both the appellants for life 5. imprisonment for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof and also imposed fine of Rs.10,000/- each and in case of default in payment of fine, further imprisonment of six months has been awarded to both the appellants.
7. Thus, it appears from the case of the prosecution that PW 4 is the informant and PW 8 is the sole eye witness of the incident. PW 1 is Dr. Yogendra Nath and PW 2 is Narayan Murmu, who was accompanying Dilip Murmu (PW 8). Thus, we will examine the deposition, given by PW 8 closely as he is the sole eye witness of the incident, as per the case of the prosecution.
8. Looking to the deposition, given by PW 8 and his cross-examination, it appears that he and one Narayan Murmu (PW 2) were going at the bridge near Village- Bongadungri where Sripat Majhi (deceased) was to reach, so that all three may go to Village- Debadih for offering Puja on 10th December, 1994. Looking to overall deposition of this witness (PW 8) and looking to paragraph no.13 of his deposition, it appears that he had gone to the police station on 10th December, 1994 at 7.00 p.m. and had conveyed the police that Sripat Majhi had been murdered. The police has not brought this first information on record. The prosecution has brought on record some statement, given by Gobind Majhi (PW 4), recorded on 11th December, 1994 at 10.30 a.m. As per the eye witness (PW 8), he had not given any name of the accused whereas in the First Information Report, which is showing a much belated time, names of two accused reveal, who are the appellants. Moreover, as per the eye witness (PW 8), he had gone to the police to give information about the murder of Sripat Majhi along with other two persons, who are Purno and Chhota. None of them has been examined by the prosecution. Thus, as per the eye witness (PW 8) he had not stated the name of any accused before the police on 10th December, 1994 at 7.00 p.m. The murder took place before a couple of hour than this fact, which was stated before the police. This witness has also stated that there was a land dispute between Sripat Majhi (deceased) and the accused persons. This witness has never stated that Govind Majhi (PW 4) had given information to the police whereas the prosecution has projected 6. Govind Majhi as an informant, who is P.W. 4. Thus, it appears that the whole case of the prosecution is concocted one and it appears that P.W. 8 is not an eye witness at all, because when he reached at the place of occurrence, the murder had already taken place. Moreover, he was also accompanied by one Narayan Murmu (PW
2), but, looking to the deposition of this witness (PW 2), he is not an eye witness of the occurrence at all. Thus, P.W. 8 is untrustworthy and unreliable witness. There are the major omissions and contradictions in his deposition, as stated herein above.
9. Looking to the deposition of Gobind Majhi (PW 4), who is son of the deceased and informant in this case, and also looking to his examination-in-chief and cross-examination, he has stated that he got the information of the murder of his father Sripat Majhi from Dilip Murmu (PW 8) and thus, he is a hearsay witness. Similarly P.W. 3 is also a hearsay witness. P.W. 5 has been declared hostile and has not supported the case of the prosecution. P.W. 7 and P.W. 9 are tendered witnesses. Looking to the deposition, given by P.W. 2, he is also not an eye witness to the occurrence, but, he has stated that he has seen both the accused riding on the bicycle and there was blood stained mark on the hands. P.W. 6 is a witness on seizure list. The articles, which are mentioned in the seizure list, have not been sent to the Forensic Science Laboratory and no report from Forensic Science Laboratory is there on the record. The Investigating Officer has also not been examined in this case and looking to the deposition of Dilip Murmu (PW 8), especially paragraph no.13 thereof, non-examination of the Investigation Officer is fatal in this case, because as per P.W. 8, he has already informed the police on 10th December, 1994 at about 19 hours that Sripat Majhi has been murdered. No name was given by this eye witness Dilip Murmu (PW
8) to the police whereas looking to the deposition of Gobind Majhi (PW 4), who has been projected as an informant, he has given the Fard-beyan on 11th December, 1994 at 10.30 a.m., alleging therein, that these two appellants have committed murder of his father and he was informed about the same by Dilip Murmu (PW 8).
10. Moreover, Sarat Kumar, who is a Clerk of some Advocate, has been examined as P.W. 10, though he is not mentioned as a charge sheet 7. witness. This witness has stated in his cross-examination that neither the Fard-beyan nor the First Information Report was recorded in his presence and he is not knowing any fact of the case. It is a misfortune that the learned trial court has examined such a person as P.W. 10. In fact, he ought not to have been examined as a prosecution witness at all. By-passer of a road, who has no knowledge of the facts of the case, cannot be examined as a prosecution witness by the learned trial court. Fard-beyan and First Information Report canot be marked as Exhibits on the basis of this type of deposition, otherwise such type of witness will enter into the Witness Box in each and every case. This type of "Universal Witness" cannot be examined by the learned trial court. In the State of Jharkhand, we have observed this tendency in several criminal cases. The Trial court is examining Clerk of Advocate, who has nothing to do with the case and who is not mentioned as a witness in the charge sheet. Such type of persons are frequently being examined by the Sessions Courts and other Trial Courts to prove the First Information Report and Fard-beyan. Therefore, we hereby direct the learned Trial Courts that henceforth such type of Clerk of Advocates shall not be examined as prosecution witness to prove the First Information Report or Fard-beyan, unless in their presence First Information Report and Fard-beyan has been recorded. This tendency of the learned trial court is very dangerous for both prosecution as well as to those, who are facing trial and it hampers the "Justice Delivery System".
11. Looking to the cross-examination of the sole eye witness (PW 8), we are of the opinion that P.W. 8 is not an eye witness at all and, thus, he has untrustworthy and unreliable witness. This aspect of the matter has not been properly appreciated by the learned trial court. The appellants have remained in judicial custody for approximately 14 years.
12. For the aforesaid reasons, the prosecution has failed to prove the offence of murder of the deceased to have been committed by these appellants beyond reasonable doubt. This appeal is allowed and the judgment of conviction and order of sentence dated 25.06.2002, passed by the 2nd Additional Sessions Judge, Seraikella in Sessions 8. Trial No. 25 of 1995 is hereby, quashed and set aside. The appellants, above named, are directed to be released forthwith from the custody, if not required, in any other case.
(D. N. Patel, J.) (Shree Chandrashekhar, J.) High Court of Jharkhand, Ranchi Dated the, 2nd July, 2013 A.K.Verma/ A.F.R.