Bishwanath Baraik And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

Three persons were named as accused in Gumla P.S.Case No. 102 of 1993 which was registered on 23.05.1993 under section 302/34 I.P.C, on the basis of the fardbeyan of Suko Lohrain, wife of the deceased, namely, Suna Lohra.

All three accused persons, namely, Bishwanath Baraik, Bhuneshwar Baraik and Lerhu Baraik have been convicted under section 302/34 I.P.C and sentenced to R.I for life in S.T.Case No.235 of 1993.

By an order dated 22.07.2002 the appellants have been granted bail by this Court.

The prosecution's case as narrated by the informant in her fardbeyan is that on 22.05.1993 when her husband, namely, Suna Lohra was returning after earning livelihood, at about 8:00 p.m the accused persons, namely, Bishwanath Baraik, Bhuneshwar Baraik and Lerhu Baraik suddenly came there and started assaulting her husband. At that time her son, namely, Mangra Lohra was also with them. The informant has claimed that Bishwanath Baraik was armed with Balua, Bhuneshwar with Tangi and Lerhu was holding a sword. Her husband on account of the injuries inflicted upon him by the accused persons fell down and died on the spot. The informant says that after they raised alarm several villagers, namely, Jhuna Lohra, Thukru Lohra, Balo Lohra, Dukhi Lohra and Mithu Lohra came there and saw the dead-body of her husband. According to the informant, the reason why the accused persons have assaulted her husband was that there was some altercation with Bishwanath Baraik who has stolen paddy crop of Bhadwa Oraon and Karma Oraon and the husband of the informant had caught him.

During the trial, the informant has been examined as P.W.10 and her son, namely, Mangra Lohra as P.W.9.

The doctor who has conducted the post-mortem examination has found the following injuries on the dead-body of Suna Lohra:

i) Bruise over right temporal region, fracture of right temporal bone and extra charal haematoma under the fracture size of bruise 3"x4".

ii) Incised wound over chin size 1"x1/2"x1/2".

iii) Incised wound under the chin 1"x1/2"x1/2".

iv) Incised wound over upper lip size 1"x1/2"x1/2".

v) Bruise covering the upper lip and the mandible, both maxile and mandible fracture.

vi) Bruise over neck.

According to the doctor, the injury nos. 1 and 5 caused to Suna Lohra were sufficient to cause his death in the ordinary course of nature. The doctor has also deposed that head injury on Suna Lohra was caused with back portion of Tangi.

The other prosecution witnesses - Jhuna Lohra-P.W.3, Thukru Lohra-P.W.4, Balo Lohra-P.W.5 and Dukhi Lohra-P.W.6 - were hear-say witnesses. When they were examined in the court, they have deposed that on hearing hulla they reached the place of occurrence and saw the dead-body of Suna Lohra.

The informant, when she was examined in the court, has been declared hostile at the instance of the prosecution. She has said that on the date of occurrence she had gone to Jorag and she has not seen any one assaulting her husband. She has further said that her son did not disclose the name of the assailants to her. Son of the informant, namely, Mangra Lohra has also been declared hostile by the prosecution. However, during cross-examination by the prosecution he has deposed that he has seen the accused persons assaulting his father. He says that his statement was not recorded by the police. However, he admits that they had no enmity with Bishwanath Baraik. At this stage, we record that the statements of the witnesses recorded under section 161 Cr.P.C were not proved during the trial.

Relying on the aforesaid evidence of P.W.9, the learned Judge has held that the medical evidence is corroborated by the ocular evidence and P.W.9 who is an eye-witness has supported the prosecution's case in entirety.

On this issue, we find the approach of the learned Judge completely erroneous. It is well-settled proposition in law that the prosecution must establish its case beyond all shadows of reasonable doubt, that is, to the hilt. It is also well-settled that if two views are possible the view which goes in favour of the accused should be adopted by the trial Judge. The prosecution has projected the informant and her son as eye-witnesses, however, the informant has turned hostile. She has completely disowned her fardbeyan which was not proved during the trial; the Investigating Officer of the case has not been examined during the trial. The crime weapon was not seized and other incriminating articles which could have established commission of the crime by the appellants were not produced during the trial. In the above facts, the learned Judge was required to examine effect of the evidence of P.W.9 during his cross-examination by the prosecution in the light of other attending circumstances.

In the above state of affairs, we are of the opinion that the appellants are entitled for the benefit of doubt. The prosecution has failed to prove the charge against them and, accordingly, their conviction under section 302/34 I.P.C is set-aside.

The appellants are acquitted of the charge framed against them.

The judgment of conviction and the order of sentence, both dated 06.06.2001, passed by the IInd Addl. Sessions Judge, Gumla, in S.T.Case No.235 of 1993 against the appellants are set-aside.

The appellants are on bail. They are discharged of liability of the bail-bonds furnished by them.

Criminal Appeal (D.B.) No. 215 of 2001 is allowed.

The Court appreciates the efforts of Mr. Pankaj Shrivastava, the learned Amicus and Mrs. Amrita Kumari, the learned A.P.P.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

Let lower court records be transmitted to the court concerned forthwith.