1 Cr. Appeal (D.B.) No. 590 of 2013 (Against the judgment of conviction dated 13.09.2012 and order of sentence dated 15.09.2012 passed by the Additional Sessions Judge-I, Bermo at Tenughat in S.T. No. 359 of 1998.) ----- Md. Jilani @ Jilani Mian son fo Late Kayamuddin Mian, resident of Village Kunda, P.O. & P.S. Mahua tanr, Dist. Bokaro. -- Appellant Versus The State of Jharkhand -- Respondent ----- For the Appellant : Mr. A.N. Deo, Advocates For the State : Mr. Vijay Kumar Gupta, A.P.P. ----- PRESENT HON’BLE MR. JUSTICE R. R. PRASAD HON’BLE MR. JUSTICE PRAMATH PATNAIK By Court :- This appellant was put on trial along with the accused Taslim, Daud and Kayamuddin on the accusation of committing murder of Ramesh Manjhi. At the fag end of the trial, the accused Taslim and Daud were found to be juvenile and hence their cases on being separated were taken for trial by Juvenile Justice Board. According to the learned counsel for the appellant, they have been acquitted by the Juvenile Justice Board. So far as accused Kayamuddin was concerned, he during trial died. In this way only the appellant stood trial. The trial Court having found the appellant guilty for the charge convicted him for the offence punishable under sections 302/34 of IPC vide its judgment dated 13.09.2012 and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 10,000/-.
2. The case of the prosecution as has been made out in the fardbeyan (Ext.3) is that on 14.07.1998 at about 12 O'clock Ramesh Manjhi @ Fagu Manjhi (the deceased), son of the informant Baban Manjhi-P.W.6, was taken by the accused Taslim and Daud to forest for grazing cattle. In the evening the cattle came back but when Ramesh Manjhi did not come home, the informant-P.W.6 started searching. 2 During that course Kishun @Kishore Manjhi-P.W.1, Shiblal Manjhi- P.W.3, and Butan Manjhi (not examined) disclosed to the informant- P.W.6 that his son Ramesh Manjhi had been seen in company of this appellant, Taslim, Daud and Kayamuddin on that day. P.W.6-Baban Manjhi did not succeed in locating his son. However, one Durga Manjhi-P.W.8, son of Munshi Majhi-P.W.4 told his father that he had seen the dead body of Ramesh Manjhi in the forest. Upon knowing it, Munshi Manjhi-P.W.4 infromed about the said fact to the informant- P.W.6 on 15.07.1998 at about 4.30 p.m. Thereupon, the informant along with villagers came to Sehda forest and found the dead body of his son.
3. On the next date i.e. 16.07.1998 when Officer In-charge of Mahuatanr Police Station came to know about such incident, he came to the place of occurrence at about 7.45 a.m. and recorded the fardbeyan (Ext.3) of Baban Manjhi-P.W.6 wherein he narrated about the incident as has been stated above. At the same time, he also made statement that those four persons including the appellant have killed his son as Kayamuddin, the grand father of another accused Daud was inimical to Chunnu Manjhi-P.W.2, the uncle of the informant.
4. On the basis of said fardbeyan a case was registered and a formal FIR (Ext.4) was drawn. The I.O. having taken over the investigation held inquest on the dead body of the deceased and prepared an inquest report. Thereupon, the dead body was sent for postmortem examination which was conducted by Dr. Kailash Prasad Sinha-P.W.7 on 16.07.1998 at about 1.45 p.m. Upon holding autopsy on the dead body, he did find following injuries: (i) incised wound on neck 6”x3” x4” cutting through back of neck just below hyiod cartilage (ii) piercing wound at right external border 1” below the right nipple 4”deep and 1” wide. 3 The doctor issued postmortem examination report (Ext.
1) with an opinion that the death was caused due to shock and haemorrhage on account of injury no.
1. 5. Meanwhile, the I.O. recorded the statements of the witnesses. On completion of the investigation, when the charge sheet was submitted against the appellant and other three accused persons, cognizance of the offence was taken against them. In due course, when the case was committed to the Court of Sessions, this appellant was put on trial along with the aforesaid three persons, during which prosecution examined as many as eleven witnesses. Of them, P.W.1- Kishun@ Kishore Majhi has testified that while he was grazing cattle in the forest he saw all the accused persons including the appellant taking the deceased. This appellant was having dab with him whereas Daud was having tangi. The appellant then cut the neck of the deceased. According to him, he thereupon came to the village and informed about it to the informant. Thereafter, on the next date dead body of Ramesh was found in the forest. Similar is the testimony of P.W.3- Shiblal Majhi so far it relates to seeing the appellant and other accused in company with the deceased. However, he has testified that this appellant was having dab with him whereas Daud was having tangi. This witness has also said that when he came back to village, he informed about it to the informant. According to P.W.4-Munshi Manjhi, when he came to know from his son Durga Manjhi-P.W.8 (who has been found by the Court to be incompetent witness) that dead body of the deceased is lying in the forest, he informed about it to the informant and then informant and others came to forest and found the dead body of the deceased. P.W.6- informant who in his fardbean had made statement that he had been told by P.Ws.1 and 3 that they had seen the deceased in company of 4 the appellant, has supported this fact in his evidence but has gone furhter to testify that Munshi Manjhi-P.W.4 and Durga Manjhi-P.W.8 had disclosed to him that the appellant had cut the neck of the deceased. P.Ws. 9, 10 and 11 are the formal witnesses.
6. Upon closure of the prosecution case, when the incriminating evidences/materials were put to the accused under section 313 of Cr.P.C., they denied. It appears that at that point of time the case of other two accused namely Taslim and Daud who had been found to be juvenile was separated whereas the other accused Kayamuddin had died before it. In that manner the appellant alone remained an accused in the trial. The trial Court having placed its reliance on the testimonies of P.Ws. 1 and 3, did find that this appellant was lastly seen in company with the deceased and at that point of time he was having dab with him and that injury caused by the appellant was sufficient to cause death as per the medical evidence. Accordingly, the trial Court recorded the order of conviction and sentence, which is under challenge.
7. Mr. A.N. Deo, learned counsel appearing for the appellant submits that P.Ws.1 and 3 never deserve to be believed who during evidence claimed to have seen this appellant and other accused committing murder, but had they seen the appellant committing murder of the deceased they would have disclosed this fact to the informant-P.W.6 and the informant would have naturally made such statement in the fardbeyan. But since those facts are not there in the fardbeyan of P.W.6, they can easily be said to have been telling lie before the Court. In this regard, it was further submitted that according to them, the appellant was holding dab whereas other accused were having tangi. But one of the injuries, which have been found on the person of the deceased is in the nature of penetrating 5 wound which could not have been caused either by dab or tangi and thereby those two witnesses P.Ws. 1 and 3 are wholly untrustworthy and the trial Court should not have placed any reliance on the testimonies of P.Ws. 1 and 3. But, since the trial Court has placed its reliance for recording the order of conviction and sentence, the impugned judgment is fit to be set aside.
8. As against this, Mr. Vijay Kumar Gupta, learned counsel appearing for the State submits that P.Ws. 1 and 3 in course of their evidences may have exaggerated the things but that does not mean that they are telling a complete lie and that the prosecution has successfully been able to prove the fact that the appellant was lastly seen in company with the deceased.
9. Having heard learned counsel for the parties and on perusal of the record, we do find that the case which has initially been made out as is appearing from the fardbeyan of the informant-P.W.6 is that on 14.07.1998 at about 12 O'clock, the accused Taslim and Daud came to the house of the deceased, Ramesh Manjhi, and took him along with them to forest for grazing cattle. Those cattle came back home in the evening but Ramesh Manjhi did not return home. Thereupon, the informant started searching his son during which course P.W.1- Kishun @ Kishore Manjhi, P.W.3-Shiblal Manjhi disclosed to him that they had seen this appellant and other accused taking the deceased with them to Sehda forest. On the next day i.e. on 15.07.1998 when Munshi Manjhi-P.W.4, came to know from his son Durga Manjhi-P.W.8 that the dead body was lying in the forest said Munshi Manjhi-P.W.4 informed about it to the informant-P.W.6, who along with villagers came to the forest and found the dead body. During evidence P.W.6 has improved its case by testifying that on the next day when he was searching his son he was told by 6 Munshi Manjhi-P.W.4 and Durga Manjhi-P.W.8 (who has been found to be an incompetent witnesses by the Court) that the appellant has cut the neck. This piece of evidence in view of the statement made in the fardbeyan cannot be accepted. However, that piece of evidence where the informant has testified that his son was taken by the accused Daud and Taslim to the forest remains intact. Coming to the evidence of P.W.1-Kishun @ Kishore Manjhi and P.W.3-Shivlal Manjhi they as per the statement made in the fardbeyan had simply informed the informant-P.W.6 while he was searching his son that they had seen this appellant and other accused taking the deceased to forest. But during evidence P.W.1 went to the extent to say that he had seen this appellant with dab and other accused Daud with Tangi and the appellant has cut the neck of the deceased whereas P.W.3-Shiblal Manjhi did testify that he had seen this appellant with dab and other accused Daud with Tangi who were taking the deceased to forest.
10. Under the circumstances, the testimonies of the witnesses of cutting neck of the deceased and also seeing the appellant with dab is not worth acceptable. If those witnesses would have seen the appellant committing murder of the deceased, they would have disclosed the said fact to the informant and the informant would have mentioned all these facts in his fardbeyan. The informant is conspicuously silent on this point.
11. However, the question does arise as to whether their testimony to the effect that they had seen the appellant and other accused taking the deceased to forest is worth acceptable? 12. It be stated that Munshi Manjhi-P.W.4, the uncle of the informant was inimical to Kayamuddin, the grand-father of the another accused Daud and the witnesses P.Ws.1 and 3 are related to the informant. The informant in his evidence and also in the 7 statement made in the fardbeyan has stated that it was the Daud and Taslim who had taken the deceased to the forest and not this appellant. In such event, when the deceased did not return home in the evening on 14.07.1998, the informant, as per his evidence and also as per the evidence of P.W.5-Talo Bibi, the wife of P.W.6-Baban Manjhi had gone to the house of Taslim and Daud to ask about the whereabout of the deceased. Had it been true that P.Ws.1 and 3 had even seen this appellant in company with the deceased, the informant in natural course of the conduct would have come to the house of the appellant to inquire about the whereabout of the deceased but it is not so. Under the circumstances, it would never be safe to convict the appellant on the said fact and hence, he deserves benefit of doubt. Accordingly, the judgment of conviction and order of sentence passed by the trial Court is hereby set aside.
13. In the result, the appellant who is in custody is acquitted of all the charges and he is directed to be released forthwith, if not wanted in any other case.
14. Thus, this appeal stands allowed. (R.R. Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated 6th October, 2015 MM/Saket /NAFR