Judgment:
1 Criminal Appeal (D.B.) No.208 of 2005 with Criminal Appeal (D.B) No.322 of 2005 ---- Against the judgment of conviction dated 15.12.2004 and order of sentence dated 16.12.2004 passed by the Additional Judicial Commissioner, FTC Xth, Ranchi in Sessions Trial No.59 of 2002. ---- Jitendra Sahu @ Jitu Sahu......……Appellant [Cr.App.(D.B) No.208 of 2005] Gopal Sahu......................…………Appellant [Cr.App.(D.B) No.322 of 2005] For the Appellant: M/s.A.K.Sahani & Amrita Banerjee[Cr.App.(DB) No.322/05] For the Appellant: M/s.P.K.Pathak & A.K.Pandey [Cr.App.(DB) No.208 of 2005] For the State :Mr. Amresh Kumar and Mrs. Laxmi Murmu, A.P.P P R E S E N T THE HON’BLE MR. JUSTICE R.R.PRASAD THE HON’BLE MR. JUSTICE PRAMATH PATNAIK By Court: These two appeals since arising out of the same judgment were heard together and are being disposed of by this common judgment. Both the appellants were put on trial on the charges of committing murder in furtherance of their common intention of Randai Kumari and Budhani Kumari and further for attempting to commit murder of Somati Kumari, Bikrai Munda and Budhani Mundain. The court having found the appellants guilty for both the charges convicted them under Sections 302/34 and 307/34 of the Indian Penal Code, vide judgment dated 15.12.2004 passed in S.T.No.59 of 2002 and sentenced them to undergo rigorous imprisonment for life for the offence punishable under Section 302/34 and further to undergo rigorous imprisonment for ten years for the offence punishable under Section 307/34 of the Indian Penal Code. The case of the prosecution as has been made out in the Fardbeyan is that on 17.5.2001 at about 6.30 p.m. while the informant Budhu Munda (P.W.4) was feeding his cattle, three persons armed with gun came, caught hold of him and asked him to come to forest for taking part in a meeting. The informant resisted by saying that this is not a proper time to go for meeting, upon which one of the miscreants struck him in his abdomen with a butt of gun. Thereupon they started taking him towards forest. Meanwhile, Sumari Mundain (P.W.5), wife of the informant Budhu Munda came and made a request not to take him towards forest. In the way, three more miscreants 2 having armed with gun joined them. They also caught hold of Dira Munda, brother of the informant, and started taking towards forest. Meanwhile, several ladies and children who assembled there prevented them from taking both the persons to forest. Resultantly the miscreants made them free but warned that they will be coming again in the night for taking them to Forest. The miscreants proceeded ahead but suddenly some of them turned around and fired shot causing gun shot injuries to RandaiKumari and Budhani Kumari who died immediately. On account of firing being made by the miscreants Somati Kumari, Bikrai Munda and Budhani Mundain had also received gun shot injuries. The injured were sent to Lapung Hospital for treatment. On the next day, i.e. 18.5.2001 at about 8.30 a.m. the informant went to Lapung police station where he gave his Fardbeyan (Ext.4) which was recorded by Bashistha Narain Singh (P.W.9), the then Officer-in-Charge of Lapung police station wherein the informant narrated about the incidence as has been stated above and also disclosed that the miscreants had committed offence at the instance of these two appellants,, who are inimical to him on account of land dispute, upon which first information report (Ext.5) was drawn. The said Bashistha Narain Singh (P.W.9) took over the investigation, during which he came to the village and made inquest on the dead bodies of Randai Kumari and Budhani Kumari and prepared inquest reports (Exts.6 and 6/1). Thereupon the dead bodies were sent to post mortem examination which was conducted by Dr.Tulsi Mahto (P.W.7), who upon holding autopsy of the dead body of Randai Kumari did find following injuries. Fire arm wounds – Having wounds of entrace of pillets over the entero lateral aspect of the abdomen. Size of the wounds measuring each about ½ cm. in diameter, spreading over an area of 17 cm.x 9 cm. on the right side of abdomen. Most of the pillets had entered into the abdominal cavity. Doctor issued post mortem examination report (Ext.3) with an opinion that death was caused due to internal heamorrhagic shock as a result of fire arm injuries. On the same day, doctor also held autopsy on the dead body of Budhani Kumari and found the following injuries. 3 Fire arm injuries with multiple wounds of entrance by pillets each measuring about ½ cm. in diameter spreading over an area of about 16 cm. diameter over right side of hand, face and neck. Forty one numbers of wounds of entrance by pillets were found. Some of the pillets were driven into the substance of brain through the multiple wounds of entrance. Doctor issued post mortem examination report (Ext.3/1) with an opinion that death was caused on account of aforesaid firearm injuries. Meanwhile, Dr.Tribeni Prasad Singh (P.W.12) examined Sumati Kumari, the injured and found the following injuries on her person. (i) Swelling on the left hand both sides. (ii) Lacerated wound on the back of left hand near the root of left index finger. (iii) Lacerated wound next the root of left thumb nail. (iv) Lacerated wound on the medial side of left thumb. (v) Lacerated wound on webs of the left thumb on the left index finger ½ “ x ¼ “ x ¼ “ (b) ¼ “ in diameter x 1/10” (c) 1/10” in diameter x 1/10” (vi)Lacerated wound on the postero-lateral side of right wrist ¼ “x½” x 1/10”. Doctor issued injury report (Ext.9) with an opinion that injury no.(i) and (vi) were caused by hard and blunt substance and others by firearms. All the injuries were simple except injury no.1 over which opinion was kept reserved till receipt of the X-ray report. The doctor on the same day also examined Budhani Mundain and found two injuries being caused by firearms. Accordingly, doctor issued injury report (Ext.9/1). Meanwhile, the Investigating Officer (P.W.9) recorded the statements of the witnesses. On account of his transfer, investigation was taken over by Ishwar Paswan (P.W.11), who did also record the statements of some of the witnesses and submitted charge sheet, upon completion of investigation, upon which cognizance of the offence was taken. When the case was committed to the court of sessions, the appellants were put on trial, during which the prosecution in order to prove its case examined as many as 16 witnesses. Of them, Budhu Munda (P.W.4), the informant did testify that 4 on the day of occurrence when he was feeding cattle, these two appellants came, caught hold of him and asked him to come to forest for taking part in a meeting. When he declined, he was assaulted with butt of gun by the appellant Gopal Sahu. Both of them started taking him and also his brother Dira Munda to forest. While they were about to leave the village, the appellants fired shots causing injuries to Randai Kumari and Budhani Kumari, as a result of which both of them died. Apart from them, Somti Kumari, Bikrai Munda and Budhani Mundain also sustained injuries. P.W.5 Sumari Mundain, wife of the informant, P.W.6 Mangra Munda, P.W.8 Kishun Lohra, P.W.10 Bade Munda, P.W.13 Budhani Mundain, P.W.14 Sumati Kumari, P.W.15 Dinesh Kerketta, P.W.16 Salua Munda claimed to be eye witnesses. They did testify that the appellants came and both of them started taking Budhu Munda and his brother Dira Munda to forest.The villagers also followed them and prevented them from taking them to forest. Meanwhile, the appellants fired shot causing injuries to Budhani Kumari and Randai Kumari, who died there. Apart from them, three children also sustained injuries. Upon closure of the prosecution case when the appellants were questioned under Section 313 of the Code of Criminal Procedure over the incriminating evidences appearing against them, they denied. The trial court having placed its reliance on the testimonies of the eye witnesses did find the appellants guilty for committing murder of Randai Kumari and Budhani Kumari and also for making an attempt to commit murder of three children and accordingly, recorded the order of conviction and sentence which is under challenge. Miss Amrita Banerjee, learned counsel appearing for the appellants submits that admittedly these two appellants had not been named as assailant in the FIR but during trial, the informant and also other witnesses developed the case wherein they did testify that it were the appellants, who were responsible for causing murder of two persons, namely, Randai Kumari and Budhani Kumari and also for causing injuries to three children which testimonies cannot be accepted as the same are tainted with improvement 5 embellishment but the trial court did not take into account this aspect of the matter and thereby committed illegality in recording the order of conviction and sentence and hence, the judgment of conviction and order of sentence is fit to be set aside. As against this, Mr. Amresh Kumar and Mrs.Laxmi Murmu, learned counsel appearing for the State submit that the witnesses appear to be the natural as they had followed the appellants while they had been taking away the informant, Budhu Munda and his brother Dira Munda. When the witnesses and other villagers stopped the appellants from taking them to forest, they resorted to firing, as a result of which, Randai Kumari and Budhani Kumari sustained injuries and died whereas three children sustained injuries and under the circumstances, the trial court cannot be said to have committed any illegality in recording the order of conviction and sentence against the appellants. Having heard learned counsel appearing for the appellants and learned counsel appearing for the State and on perusal of the record, we do find that the case which was initially made out in the Fardbeyan by the informant Budhu Munda, P.W.4 is that when the informant was feeding cattle, three persons armed with gun came, caught hold of him and started taking him to forest for holding a meeting. Three more persons joined them. In the way they also caught hold Dira Munda, brother of the informant, P.W.4 and started taking towards forest. Meanwhile, several ladies and children assembled, upon whose resistance both the persons were freed by them but they resorted to firing, as a result of which, Randai Kumari and Budhani Kumari sustained gun shot injuries resulting into their death whereas three children sustained gun shot injuries. According to the informant, miscreants were unknown but they did commit offence at the instance of these two appellants and therefore, the case was registered against these two appellants. During investigation, the Investigating Officer (P.W.9) did not find any evidence of the appellants committing such offence which is evident from his evidence as testified in paragraph 18. However, charge sheet seems to 6 have been submitted against the appellants. During trial, all the eye witnesses including the informant did testify that it were the appellants, who were taking informant and his brother to forest and it were they, who resorted to firing. All of them when were confronted with their statements made under Section 161 of the Code of Criminal Procedure, they did testify that they had made statements as has been testified by them but the Investigating Officer (P.W.9) did testify that none of the witnesses had stated before him that it were the appellants who were taking the informant and his brother Dira Munda to forest and it were they, who resorted to firing resulting into the death of Randai Kumari and Budhani Kumari and injuries to three children. Under the circumstances, none of the eye witnesses can be said to be the trustworthy and hence, their evidences are not worth reliable at all. The trial court did not take into account this aspect of the matter and thereby committed illegality in recording the order of conviction and sentence which is hereby set aside. Consequently, the appellants are acquitted of both the charges. Accordingly, the appellant, Gopal Sahu, who is in custody, is directed to be released forthwith, if not wanted in any other case. So far the appellant Jitendra Sahu @ Jitu Sahu is concerned, he is discharged from the liability of the bail bond. Thus, both the appeals stand allowed. (R.R.Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi, The 18th August, 2015, NAFR/N.Dev