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Judgment
Pradeep Kumar, J.—Heard learned Counsel for the appellants and learned Counsel for the respondent.
This appeal is directed against the judgment of conviction and order of sentence dated 31.01.2002 passed by Shri Binay Kumar Sinha, learned Sessions Judge, Jamtara in Sessions Case No. 595 of 1992 by which judgment learned Sessions Judge found the appellant No. 1 Manager Kisku guilty u/s 448 of the Indian Penal Code and sentenced to undergo R.I. for one month and also found guilty u/s 324 of the Indian Penal Code and directed him to undergo R.I. for six months. He also found appellant No. 2 Chunnu Tudu guilty u/s 323 of the Indian Penal Code and sentenced to release after due admonition and u/s 448 sentenced him also to R.I. for one month.
It is submitted by learned Counsel for the appellant that the entire prosecution case is false and fabricated. The prosecution case has been started only by the informant and her husband P.W. 3 and nobody has supported the prosecution case and the witnesses admitted that the land in question was in possession of the appellant, since it was his paternal property and claim of the informant that she was living in the house is not correct and filed this case only to create an evidence in her favour and as such both the appellants should be acquitted.
On the other hand learned Counsel for the State has submitted that although the P.W. 3 - the husband of the informant has admitted that the case filed by the appellant before the Sub Divisional Officer that he was evicted from the land but still they have succeeded in proving the charges against the appellants u/s 324 of the I.P.C. and other Section of I.P.C. against the appellants.
After hearing both the parties and going through the records, I find that the prosecution case was started on the basis of the First Information Report given by the informant Phool Kumari stating therein that on the date of occurrence i.e. on 27.09.1991 at about 6.00A.M. her brother Manager Kisku along with his wife Chunnu Tudu came and started ploughing her bari and when she stopped them he given Tangi blow on her head. His wife also wanted to assault by Sabal but she caught hold. She stated that the land was given to her by her father since she contracted inter caste marriage.
On the basis of said F.I.R. police registered a case under Sections 448, 324, 323, 307, 341/34 of the Indian Penal Code and after investigation submitted charge sheet.
Since, the case was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate after taking cognizance of the case, committed the case to the Court of Sessions and finally the case was tried by Sessions Judge, Jamtara, where the charges were framed and the appellants were convicted as foresaid.
It appears that prosecution has examined five witnesses. P.W. 1 is Onesar Hansda, P.W. 2 is Dhananjay Marandi, P.W. 3 is Bimal Kumar Sahu, P.W. 4 is Phul Kumari Kisku, & P.W. 5 is Dr. Alfred Murmu.
It is important to note that P.W. 1 Onesar Hansda turned hostile and has not supported the prosecution case while P.W. 2 Dhananjay Marandi has proved the formal F.I.R. only to show the prosecution case. P.W. 3 stated in Court that after conducting court marriage with Phool Kumari Kisku he got land from her sasural, where he was living with his family and child. On the date of occurrence at about 6.00 A.M. hearing hulla he came out then saw Manager Kisku standing with Kulhari and his wife was lying on the ground. She was injured on her head. Subsequently, his wife told that the accused Manager Kisku assaulted her then he took her to police station. In his cross-examination at Para 8 he stated that his father was not alive at the time of his marriage and he had good relation with the accused Manager Kisku. He also admitted in Para 9 that subsequently the Manager Kisku - his brother-in-law filed a case of eviction with regard to this land and bari which is Dag No. 723 and the Sub Divisional Officer allowed the eviction application.
Second witness is informant P.W. 4 Phool Kumari Kisku. She stated that she has two bighas of land from her father, where she was living with her husband and the accused. On the date of occurrence Manager Kisku assaulted her with Tangi on her head thereafter on her hulla her husband and villagers Dhaneshwar and Bablu came out thereafter she gave information to the police. At Para 10 she stated that she became unconscious after the injury and her cloth was smeared with blood which she had given to the police. Subsequently, she stated at Para 12 that she, had gone to the hospital on next date and for two or three days she was admitted at Jamtara hospital. P.W. 5 is Dr. Alfred Murmu who stated that he examined Phool Kumari Murmu on 28.09.1991 when he was posted at Sadar Hospital, Jamtara and found one incised wound 1 1/2" X 1/4"scalp deep on left parietal region of head along with other injuries. All the injuries were simple in nature caused by sharp cutting edge.
Thus, after considering both the witnesses I find that the claim of the informant that she was granted two bighas of land when she underwent, inter caste marriage with P.W. 3 has not been supported by any witness but her husband P.W. 3 stated that at the time of marriage his father-in-law was dead. Natural possession of land was with accused Manager Kisku and he also admitted in Para 9 that by the order of the Sub Divisional Officer he was evicted from the land and as such the presence of the informant itself is doubtful. Moreover, while the informant P.W. 4 stated in Para 10 that after receiving injury she became unconscious but her husband P.W. 3 stated at Para 10 that after occurrence Phool Kumari was conscious and he stated in Para 8 that he had taken his wife to the hospital on the next date but she was not admitted in the hospital.
In that view of the matter the prosecution case has become doubtful and in the absence of any independent witness, who are named in the F.I.R., to support the evidence of the informant and her husband it can only be said that the case has not been proved. In that view of the matter both the appellants are given benefit of doubt and acquitted from the charges levelled against them. Accordingly, this appeal is allowed.