Gere Gundwa (Gundra) Sirka vs The State of Bihar (now Jharkhand)

D.N. Patel, J.—The present appeal is arising out of the judgment and order of conviction and sentence both, dated 16th March, 1999 passed by the learned 1st Additional Sessions Judge, Chaibasa in Sessions Trial No. 378 of 1993 whereby, the appellant-accused has been convicted for the offence, punishable u/s 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life, for committing murder of Madhu Boipai- father-in-law of the informant, who is P.W.-6.

If the prosecution case is unfolded, the facts of the case are as under:

It is the case of the prosecution that on 16th September, 1993 at about sun set, when the informant-Roibari Kui (P.W.6) was having some quarrel with her father-in-law, who is Madhu Boipai about cooking of food, the appellant-accused came at their house and demanded Handia (rice beer). When P.W.6 had given rice beer to the appellant, it was opposed by Madhu Boibai and ultimately, the appellant-accused assaulted upon Madhu Boipai by Lathi and thereafter, by arrow, on 16th September, 1993 at evening hours. Thereafter, Madhu Boipai expired on 17th September, 1993 at about 4.00 a.m. P.W.6-Roibari Kui never informed anybody right from 16th September, 1993 onwards till 17th September, 1993 and on 18th September, 1993, police came to know, from rumours, that there is a murder of one person and then came to the village-Latar Kundrujor and then, she informed the police on 18th September, 1983 at about 4.30 p.m. about the whole incident to the police and her Fardbeyan was recorded as Exhibit-2 and thus, the FIR was lodged, investigation was carried out, statement of witnesses was recorded, charge-sheet was filed and a sessions trial No. 378 of 1993 was instituted against the appellant-accused. Upon recording of the evidences and appreciating the same, the appellant-accused has been convicted for the offence for committing murder of Madhu Boipai and has been sentenced to undergo rigorous imprisonment for life. Against this judgment and order of conviction and sentence, the present appeal has been preferred.

We have heard learned Counsel for the appellant-accused, who has submitted that the alleged eye witness (P.W.6) is not at all an eye witness of the incident. There are several omissions, contradictions and improvements in her disposition and P.W.6, therefore, is not a reliable and is untrustworthy witness. This aspect of the matter has not been properly appreciated by the trial court and hence, the impugned judgment and older of conviction and sentence, passed by the trial court, deserves to be quashed and set aside. It is also submitted by the learned Counsel for the appellant-accused that though incident has taken place on 16th September, 1993 at evening hours and F.I.R. was lodged on 18th September, 1993 at about 4.30 p.m., the so called eye witness P.W.6 Roibari Kui has never informed anybody in the village, though there were several houses nearby the house of the deceased. The strange behaviour of the sole eye witness requires much more scrutiny of her evidence, and her deposition is not getting corroboration from the depositions of P.W.4 nor from P.W.3, who is medical evidence. There is no other eye witness of the incident. It is also submitted by the learned Counsel for the appellant-accused that the alleged seizer of arrow was found from footpath of the village, which has brought no legal value or connecting the accused with an offence of the murder. Alleged recovery of the blood stained shirt is also not proved, beyond reasonable doubt, by the prosecution. No chemical examination report has been brought on record by the prosecution. Alleged seizer is not even referred in the case diary, nor the same has been presented before the trial court. Incident has taken place on 16th September, 1993 and it is not possible that the accused is wearing the same shirt having blood stained upto 18th September, 1993. It is also submitted by the learned Counsel for the appellant-accused that the deposition of P.W.3-Dr. Jawahar Khan, reveals that death has taken place due to shock and hemorrhage and asphyxia, due to strangulation and there is no allegation by P.W.6, so far as strangulation is concerned. Thus, a major injury has remained unexplained. Thus, ocular evidence is not in consonance with the medical evidence. The sole eye witness is also silent for two days. Nobody was informed by the eye witness. Seizer list or Panchnama is not proved, beyond reasonable doubt, by the prosecution and though other independent witnesses were residing in the nearby vicinity, no independent witness has been examined by the prosecution. These aspects of the matter have not been properly appreciated by the trial court. Hence, the impugned judgment and order of conviction and sentence, passed by the trial court, deserves to be quashed and set aside.

We have heard learned Additional Public Prosecutor, appearing on behalf of the State, who has submitted that the whole case of the prosecution is based upon an eye witness P.W.-6-Roibari Kui. Looking to her deposition, there is no omissions, contradictions or improvements, though she has given disposition, approximately after five years. There is enough corroboration of her deposition by the medical evidence given by P.W.-3, who has carried out post-mortem of the deceased. Looking to the nature of the injury, there are injuries by arrow and lathi. Thus, the deposition of P.W.6 is getting corroboration by the deposition of P.W.6. Moreover, looking to the deposition of P.W.7, who is an Investigating Officer, blood stained shirt and arrow have also been recovered, during course of the investigation and there is corroboration of the deposition given by P.W.4, who is ''Munda'' of the village, to the deposition of the eye witness. The distance of the scene of the offence and the distance of the police station is forty kilometers and it cannot be said that there is unreasonable delay in lodging the F.I.R. There is an inimical terms between the eye witness and the deceased and therefore, there is no reason to eye witness to give false evidence against the appellant-accused. This aspect of the matter has been properly appreciated by the trial court. Hence, this Court may not interfere with the order of conviction and sentence, passed by the trial court and the appeal may kindly be dismissed.

Having heard learned Counsel for the both sides and looking to the evidences on record, it appears that the whole incident has taken place on 16th September, 1993 at about evening hours, when P.W.6, Roibari Kui was having hot exchange with her father-in-law, namely Madhu Boipai, about cooking of food, at that time, the appellant-accused came their house and demanded Handia (rice beer). When Roibari Kui gave Handia to the appellant-accused, it was opposed by Madhu Boipai and therefore, the appellant-accused assaulted with Lathi upon Madhu Boipai and caused injuries to him (deceased). Thereafter, Madhu Boipai demanded water and therefore, P.W.6 Roibari Kui gone inside for bringing water. In that time, the appellant-accused caused injury by arrow, which was lying in their house. Thereafter, throwing the arrow nearby, the appellant accused gone away and injured Madhu Boipai expired on the next day of morning i.e. on 17th September, 1993. Looking to the deposition of P.W.6, there is strange behaviour of this witness that right from 16th September, 1993 at evening hours, though there was assault by the appellant-accused by Lathi and by arrow in presence of P.W.6, she had not informed anybody in the village. It is stated by P.W.6 that she shouted, but, the prosecution has failed to examine any other witness, when the accused had rushed out of the house of the deceased. Neither this P.W.6, who is sole eye witness had informed even the head of the village i.e. P.W.4, nor she had informed any neighbour and she kept silent upto 18th September, 1993 at about 4.30 p.m. i.e. till the police came at the village and asked her about the incident. This strange behaviour of the sole eye witness compels this Court to scrutinize closely her evidence otherwise, she is claiming to be an eye witness. Looking to her disposition closely, it appears that her deposition is not getting corroboration by the medical evidence given by P.W.3. The cause of the death given by Dr. Jawahar Khan, who is P.W.-3, is not tallying with the narration of the whole incident given by P.W.6. Death has been caused due to shock and haemorrhage and asphyxia due to strangulation and there is no allegation by this eye witness, so far as strangulation is concerned, upon the appellant-accused. Who caused this vital injury to the deceased, is unexplained and the prosecution has failed to prove this vital injury, which has resulted into the death of the deceased. In absence of any allegation upon the appellant-accused of strangulation and looking to the strange behaviour of this alleged so called eye witness, she inspires no confidence and we find that she is not reliable and trustworthy witness. Moreover, looking to the deposition of P.W.6, who is sole eye witness of the incident, the appellant-accused after causing injuries by arrow had left the house. Arrow was thrown there and there only, as per the deposition of P.W.6. As per the deposition of P.W.7, who is an Investigating Officer, blood stained arrow was found from the footpath, nearby the house of the appellant-accused and seizer list was carried out at Exhibit-6, whereas, looking to the deposition of P.W.4, who is Munda Singrai Boipai, arrow was recovered from the house of the appellant-accused and looking to the deposition of the police, this seizer was never even referred in the case diary, nor the same was presented before the trial court and thus, recovery of arrow, which connects the murderer with the murder, is not proved, beyond reasonable doubt, by the prosecution.

Looking to the deposition of P.W.3, following are the injuries, which were found during the post mortem, carried out by him, on 19th September, 1993 at about 4.00 p.m., which is at Exhibhit-3.

(i). Three penetrating wounds over left parotid region measuring 1/2" x 1/2" x bone deep each.

(ii) Left Pinna was found cut down.

On dissection of the dead body, muscle of neck was found badly lacerated. Trachial rings were found broken. Hyoid bone was also fractured. Left mendibular portion of bone was also fractured. Thoracic cavity was full of blood clots. Right side ribs were fractured. 2nd, 3rd, 4th and 5th ribs of left side were also fractured. Lungs were punctured. Heart was devoid of blood. Liver was intact. Stomach was empty. Urinary bladder was also empty. The aforesaid external as well as internal injuries were sufficient to cause death in ordinary course of nature. External injuries were caused by sharp and pointed weapon such as arrow. Internal injuries were found to have been caused by hard and blunt substance such as lathi. Time elapsed since death is within 48 hours at the time of postmortem examination. The cause of death was due to shock and hemorrhage and asphyxia.

Thus, from the aforesaid deposition of this P.W.3- Dr. Jawahar Khan, it appears that cause of the death was due to shock and haemorrhage and asphyxia, due to strangulation. There was also allegation of strangulation mark. There is no allegation upon the appellant-accused that he has caused this injury of strangulation upon the deceased. P.W.6, the sole eye witness has never stated anything about throttling by the appellant-accused. Thus, deposition of the sole eye witness is not getting corroboration by the medical evidence given by P.W.3.

Looking to the deposition given by other prosecution witnesses, especially by P.W.4, who is the head of the village, he has also stated in his deposition that he came to know about the death of the deceased by rumours. Thus, the sole eye witness after incident dated 18th September, 1993 from evening hours, is silent till 18th September, 1993 at about 4.30 p.m. Neither P.W.4 was informed by the so called eye witness, nor other co-villagers were also never informed by the sole eye witness. Medical evidence is not tallying with her deposition. Alleged recovery of the blood stained shirt and arrow are not proved, beyond reasonable doubt by the prosecution. Appellant-accused is in jail since 1993, by now, sixteen years have already over and completed.

As a cumulative effect of these evidences, the prosecution has failed to prove beyond reasonable doubt that the appellant-accused has committed the murder of deceased-Madhu Boipai. This aspect of the matter has not been properly appreciated by the trial court, especially, the strange behaviour of the sole eye witness which is not getting corroboration by the medical evidence and the seizer list or Panchnama, was never proved by the prosecution nor even case diary has got reference of this seizer. In these set of circumstances, we, hereby, quash and set aside the judgment and order of conviction and sentence dated 16th March, 1999 passed by the learned 1st Additional Sessions Judge, Chaibasa, in Sessions Trial No. 378 of 1993. The appellant-accused is ordered to be released forthwith from custody, if his judicial custody is not required in any other offences.

Appeal is allowed.

Ms. Samita, appeared as Amicus Curiae and she has assisted the Court. We appreciate painstakingly services rendered by her, in arriving at the aforesaid conclusion.