Jivan Besra vs State Of Bihar

Deepak Roshan , J

This appeal is directed against the judgment of conviction dated 05.03.1993 and order of sentence dated 06.03.1993 passed by the 6th Additional

Sessions Judge, Santhal Parganas, Dumka in Sessions Case No.99 of 1990, whereby the sole appellant-Jivan Besra has been found guilty of

committing murder of Girish Besra and was awarded sentence to undergo R.I for life for the offence punishable under Section 302 IPC.

During the pendency of this appeal the sole appellant was granted bail vide order dated 06.08.1993 by this Court.

The case of the prosecution in short is that the husband of the informant, Girish Besra (deceased) had gone to the village in search of wine for

serving his relatives, however, he returned at about 7.00 p.m. on 15.09.1989 without wine. Thereafter, the deceased asked his mother as to why she is

living with his younger brother-Jivan Besra, when they have partitioned amongst them, whereupon there was hot discussion between the deceased and

his mother. Upon hearing the noise, the appellant-Jivan Besra came on the spot but by that time the informant went for taking water from well and

when she returned she found her husband lying on the ground in unconscious state. Blood was oozing from his head and the appellant-Jivan Besra

was standing with one Bamboo-Patti of cot and Ramdhan Murmu had caught hold of him. On the next morning the deceased succumbed to his

injuries.

On the basis of Fardbeyan ( Ext.3) of Nayan Murmu, wife of deceased a formal FIR was drawn up on 16.09.1989 at 22.30 hrs. After completion

of the investigation, the I.O submitted charge-sheet against the accused-appellant.

The appellant has pleaded not guilty to the charge levelled against him and his main defense was that he has not committed murder of deceased and

he has been falsely implicated on account of previous enmity only on the basis of suspicion.

In course of trial altogether 6 witnesses were examined amongst which P.W.1-Baburam Besra is a witness to the later part of the occurrence. He

is a hearsay witness since on hearing 'Hulla' in the night at about 10.00-11.00 p.m. he went to the house of the appellant where he saw the deceased

lying on the ground. He has stated that Ramdhan Murmu had caught hold of the appellant and the said Ramdhan Murmu has stated that the appellant

had killed the deceased. It is pertinent to mention here that the said Ramdhan Murmu who caught hold the appellant as per the statement of the

informant has not been examined in this case. P.W.2 namely, Nayan Murmu who is wife of the deceased is also not an eye witness to the first part of

the occurrence as admitted by her in the FIR and this witness was not cross-examined due to non-appearance of defence lawyer. P.W.3 namely,

Mungali Baskey is the mother of the appellant as well as of the deceased and as per the FIR she was present at the place of occurrence on the

alleged date and time from the beginning till the end but she has been declared hostile. P.W.4 has also been declared hostile. P.W.5 is the doctor who

has conducted autopsy on the dead-body of the deceased and found the following injuries on the dead-body: (i) one lacerated wound 3†X ½â€

deep over right parietal bone of skull. (ii) one lacerated wound of 2½†X ½†X bone deep over left side of forehead. Other two injuries were

found below left side of chin and over the back of the left side. As per the opinion of the doctor the cause of death was due to shock and hemorrhage

as a result of injury no.2 which was sufficient in ordinary course of nature to cause death. The investigating officer has examined himself as P.W.6

and has admitted that after getting the information about the alleged occurrence he went to the place of occurrence and recorded fardbeyan of the

informant but did not seize the blood-stained soil from the place of occurrence and at the same time he could not mention details of bamboo-patti in the

seizure list and even failed to record the statement of the person living adjacent to the place of occurrence.

Based upon the testimonies of the prosecution witnesses, the learned trial court has held in para-11 that “though there is no direct evidence of

eye witnesses who saw this accused assaulting the deceased but the circumstances clearly go to indicate and prove that the injuries in question were

inflicted by this appellant on the deceased and as a result of which these injuries he succumbed ultimately.â€​

Mr. K. K. Ojha, the learned counsel for the appellant and Ms. Amrita Sinha, the learned Amicus have vehemently stressed upon the evidence of

P.W.1 and P.W.2 to contend that the appellant has been convicted by the trial court irrespective of the fact that both the witnesses have not seen the

appellant assaulting the deceased by the bamboo-patti of cot. As from evidence it is evident that while they reached the place of occurrence, the

deceased was lying on the ground in unconscious state and found the appellant at the spot who was caught by one Ramdhan Murmu who has not

been examined. The learned counsels have further argued that case against the appellant is of circumstantial evidence and the only evidence against

the appellant is that he was seen by the P.W.1 and P.W.2 at the place of occurrence where the deceased was lying in the unconscious state

sustaining injuries. The learned counsel for the appellant has argued that prosecution has failed to prove the case beyond all shadow of reasonable

doubt and the chain of circumstances is not complete.

Mr. Ram Prakash Singh, the learned APP for the State has supported the impugned order and submitted that the appellant was caught on the spot

holding bamboo-patti and before that there was altercation between the two persons and as such there was a motive behind the occurrence and,

moreover, the chain of circumstances is complete.

Heard the parties and perused the evidence on record and the impugned judgment.

Two persons namely, Moti Lal Soren and Lukhi Ram Marandi who have been mentioned as witness in the FIR but both of them have not been

examined by the prosecution in course of trial. Surprisingly, the important and the material witness namely, Ramdhan Murmu who allegedly caught

hold of the appellant as per the statement of the informant has also not been examined. Further, other material witness P.W.3 who is mother of the

appellant and deceased has not supported the prosecution version irrespective of the fact that the said witness was present at the place of occurrence

right from the beginning.

This is a case of circumstantial evidence and in the cases based on the circumstantial evidence, circumstances must be consistent with the

hypothesis of guilt of the accused, totally inconsistence with the innocence of the accused. It is a settled proposition that in cases of circumstantial

evidence, the circumstances from which the conclusion of the guilt is to be drawn should in first instance be fully established and all the facts so

established should be consistent only with the hypothesis of the guilt of the accused. In “Hanuman Govind Nargundkar and another Vs. State of

M.P.â€​ reported in AIR 1952 SC 343, in para-10 the Hon'ble Supreme Court has held as under:

“.......... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of

guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the

guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis

but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done

by the accused.....â€​

Further, it is also a well-settled proposition in law that suspicion howsoever strong cannot take place of legal proof. In the case of “Balwinder

Singh Vs. State of Punjab†reported in 1995 Supp. (4) SCC 259, the Supreme Court has cautioned that the Court has to be on its guard to avoid the

danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations,

howsoever strong they may be, to take the place of proof.

We find that the only circumstance which has been proved by the prosecution is that the accused was holding bamboo-patti in his hand and the

deceased was lying on the floor. This could have been one of the circumstances, but not the only circumstance on the basis of which an accused can

be convicted for the offence under Section 302 IPC. Apparently, the approach of trial court was faulty and it cannot be accepted in law. As aforesaid,

material witnesses were either not examined or declared hostile. The investigating officer did not even seize the blood-stained soil from the place of

occurrence and at the same time did not mention details of bamboo-patti in the seizure-list which was alleged to be the main weapon used by the

appellant.

After analyzing the entire evidence on record, we find that the circumstances which can be found proved are not sufficient to convict the appellant

for the offence under Section 302 IPC. The chain of circumstances is not complete and the proved circumstances do not lead to an inescapable

conclusion that it was the appellant and the appellant alone who has committed the crime.

In view of the aforesaid discussions, we are of the opinion that the judgment of conviction dated 05.03.1993 and order of sentence dated

06.03.1993 passed by the 6th Additional Sessions Judge, Santhal Parganas, Dumka in Sessions Case No.99 of 1990 are liable to be set aside and these

are accordingly set-aside.

As a result, Criminal Appeal (D.B.) No.336 of 1993 is allowed. The appellant is discharged of liability of the bail-bonds furnished by him.

We appreciate the efforts of Mr. K. K. Ojha, the learned counsel for the appellant as well as Ms. Amrita Sinha, the learned Amicus who have

meticulously prepared the list of dates and detailed notes on the prosecution evidence and ably assisted the Court arguing this criminal appeal on behalf

of the appellant.

The assistance rendered by Mr. Ram Prakash Singh, the learned A.P.P is also appreciated.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills(s). She 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 the lower-court records be transmitted to the court concerned, forthwith.

Let a copy of the judgment be transmitted to the court concerned through 'FAX'.