Mohar Rai vs State Of Jharkhand

K. P. Deo, J

Heard, learned counsel for the appellant, Mrs. Bakshi Vibha, Advocate and learned counsel for the State, Mr. Arun Kumar Pandey, Additional Public Prosecutor.

The instant criminal appeal is directed against the judgment of conviction dated 12.01.2005 and order of sentence dated 18.01.2005, passed by learned Additional Sessions Judge, Fast Track Court II, Giridih, in Sessions Trial Case No. 356 of 2003, whereby the sole appellant has been convicted for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded imprisonment for life with fine of Rs. 10,000/- and in case of default in payment of fine to further undergo simple imprisonment for a period of two years.

The prosecution case is based upon fardbeyan of informant, Jitani Devi (P.W.-6), recorded by Officer-in-Charge Ashok Kumar Singh of Hirodih police station in the District of Giridih on 10.04.2003 at 12:45 P.M. at village Saail, where the informant has alleged inter-alia as follows:

The informant has stated that her husband Murli Ravidas, father-in-law Jharkhandi Ravidas and uncle-in-law, Arjun Ravidas were working together in Calcutta Corporation. The informant has stated that her father-in-law Jharkhandi Ravidas came to the house on last Monday. It is stated that on last Tuesday, her father-in-law (Jharkhandi Ravidas) went with neighbour Mohar Rai (appellant) at around 10:00 A.M. to Mangala Haat and returned at 04:00 P.M. It is stated that neighbour Mohar Rai came to her house and called her father-in-law for taking liquor, both went away and after taking liquor both have returned to the house at 08:00 P.M. It is stated that Mohar Rai went to his house and father-in-law of the informant demanded food, the informant gave food to her father-in-law but her father-in-law instead of taking dinner in the house went to the house of Mohar Rai along with his plate. The informant has stated that she alongwith her sister-in-law Meena Kumari have also followed her father-in-law. Mohar Rai asked her father-in-law to come on terrace through the stairs, thereafter father-in-law of the informant climbed over the terrace through stairs. It is alleged that at around 02:00 A.M., Mohar Rai came to the door of the informant and raised brawl asking the informant that her father-in-law is crying with pain. Thereafter the informant along with the her sister-in-law Meena Kumari saw her father-in-law lying at the door and blood was oozing from his head and mouth. The informant started crying due to which people started assembling there. Thereafter Mohar Rai brought a doctor for treatment. In course of treatment, the informant's father-in-law died on 09.04.2003 at 01:00 P.M. The informant has stated that she has seen the blood stain on the terrace of the house of the appellant but subsequently the same was washed away. The informant has claimed that Mohar Rai has assaulted her father-in-law after providing meal and liquor. Since, there was no male member in the house, as such the informant came today along with her husband to give information.

On the basis of fardbeyan, the police has registered Hirodih P.S. Case No. 18 of 2003, dated 10.04.2003, under Section 302 of the Indian Penal Code against the sole appellant Mohar Rai.

After completion of investigation, the police has submitted Final Form vide charge sheet no. 17 of 2003, dated 29.05.2003, under Section 302 of the Indian Penal Code, against the sole accused Mohar Rai.

The cognizance of the offence has been taken vide order dated 16.09.2003 and the case has been committed to the court of sessions vide order dated 27.09.2003.

The charge has been framed against the sole accused/appellant under Section 302 of the Indian Penal Code, on 23.01.2004, to which the accused/appellant has pleaded his innocence and thus, he was put under trial.

The prosecution, to prove its case, has examined altogether nine witnesses and also exhibited a number of documentary evidence up to exhibit-4.

Dr. Vishwanath Das, Medical Officer, has been examined as P.W.-1, Ashok Kumar Singh, investigating officer of the case, has been examined as P.W.-2, Meena Kumari, has been examined as P.W.-3, Arjun Ravidas, has been examined as P.W.-4, Murli Ravidas, has been examined as P.W.-5, Jitani Devi, informant has been examined as P.W.-6, Ram Lali Ravidas, has been examined as P.W.-7, Kare Ravidas, has been examined as P.W.-8 and Meghan Ravidas, has been examined as P.W.-9.

Postmortem report has been proved and marked as exhibit-1, fardbeyan, has been proved and marked as exhibit-2, endorsement on the fardbeyan, has been proved and marked as exhibit-2/1, inquest report, has been proved and marked as exhibit-3, signature of Arjun Ravidas (P.W.-4) on the inquest report, has been proved and marked as exhbit-3/1, signature of Murli Ravidas (P.W.-5) on the inquest report, has been proved and marked as exhibit-3/2 and the formal First Information Report, has been proved and marked as exhibit-4.

After closure of the prosecution evidence, the statement of the accused has been recorded under section 313 Cr.P.C., on 05.10.2004, to which the accused has denied the allegation levelled against him and stated that he is innocent and has been falsely implicated in this case.

After hearing the learned counsel for the parties and on perusal of materials available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant under Section 302 of the Indian Penal Code and awarded imprisonment for life with fine of Rs.10,000/- and in case of default in payment of fine to further undergo simple imprisonment for two years.

Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal, assailing the same.

Heard, learned counsel for the appellant Mrs. Bakshi Vibha, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has submitted, that there is no eye witness to the occurrence. As per the prosecution case, the victim, Jharkhandi Ravidas went to the house of the appellant along with his meal and in the mid night, the appellant Mohar Rai came to the door of the informant to wake up the informant as her father-in-law was lying on door of the informant in pain. Learned counsel for the appellant has further submitted that as per the prosecution case Mohar Rai went to call a doctor and initial treatment was given to the victim Jharkhandi Ravidas but the injured succumbed to the injury and thereafter information was given to the police. Learned counsel for the appellant has further submitted that there is no eye witness to the occurrence nor there is any motive to the occurrence, as appellant Mohar Rai went to call doctor to save the life of Jharkhandi Ravidas. Learned counsel for the appellant has further submitted that as per the evidence of the medical officer, Dr. Vishwanath Das (P.W.-1) the deceased died because of intracranial haemorrhage and shock by hard, heavy and blunt object, the time elapsed since death to postmortem examination is within 36 hours. Doctor has found three external injuries on the person of the victim:

"(i) stitched wound incised in nature ½" x 1/4" on the upper portion of right ear

(ii) stitched wound 1" x 1/4" with incised margin posteriorly on right parietal region of skull

(iii) Incised wound 1" x 1/4" on the left hand between thumb and index finger."

Learned counsel for the appellant has further submitted that medical officer has categorically admitted that all the injuries are ante mortem in nature and caused by sharp cutting substance may be tangi and also found that skull bone was fractured. Learned counsel for the appellant has further submitted that doctor has disclosed during cross-examination that it may be suspected case of poisoning. Learned counsel for the appellant has thus submitted that appellant cannot be convicted for the offence committed under Section 302 of the Indian Penal Code, on the basis of suspicion. Learned counsel for the appellant has further submitted that Ashok Kumar Singh, who was Officer-in-Charge of Hirodih police station has been examined as P.W.-2 and has proved the fardbeyan of the informant recorded by ASI Kare Ravidas (P.W.-8), which has been marked as exhibit-2, the signature of the officer-in-Charge on the fardbeyan has been proved and marked as exhibit-2/1, the inquest report prepared by ASI, Kare Ravidas, has been proved and marked as exhibit-3, the formal First Information Report, has been proved and marked as exhibit-4. Meena Kumari, daughter of the deceased, has been examined as P.W.-3. This witness has stated that in paragraphs 6 and 7 of her cross-examination that her house and the house of Mohar Rai have terrace without any parapet and both the houses are adjacent to each other constructed under Indra Awas Yojna, such house have no court-yard. She has further stated in paragraph 8 of her cross-examination that she has asked her father not to take liquor but he did not agree to the same. This witness has further stated in paragraph 9 of her cross-examination that prior to the occurrence, there was no quarrel between the family of the informant and Mohar Rai. This witness has further stated in paragraph 10 of her cross-examination that Mohar Rai went to call the doctor and thereafter injured was given treatment. She has further stated in paragraph 13 of her cross-examination that when sub-inspector came to the village, the dead body of her father was lying under the tree of Mohar Rai. This witness has further stated in paragraph 14 of her cross-examination that there was some dispute as Mohar Rai has forcibly eaten their he-goat. Learned counsel for the appellant has further submitted that evidence of P.W.-3 suggest that Mohar Rai has no enmity with her family. Mohar Rai is the person who has informed the informant, after hearing the cry of the victim and called the doctor for providing medical assistance. Learned counsel for the appellant has further submitted that a person who has assaulted, will not call the doctor to save the life of injured as there is every likelihood of his implication at the hands of the injured. Learned counsel for the appellant has further submitted that there is no motive on the part of Mohar Rai to commit such crime and there is no evidence against Mohar Rai. The prosecution story suggest, that Mohar Rai has been subsequently made accused in this case without any basis by the informant and the First Information Report has been filed after a delay of one day. Arjun Ravidas son of victim has been examined as P.W.-4, who is a hearsay witness as was working at Calcutta and after hearing the same, he came to his village and saw the dead body. He has proved his signature on inquest report, which has been marked as exhibit-3/1. This witness has stated that accused Mohar Rai has illicit relation with Shanti Devi wife of Nago Ravidas and for that Jharkhandi Ravidas used to make protest and also Mohar Rai at the time of marriage of his son has taken the he-goat of Jharkhandi Ravidas, for which he has said that he will pay the money. Learned counsel for the appellant has further submitted, that this witness is not an eye witness to the occurrence nor his statement is corroborated with the statement of other prosecution witnesses. P.W.-3, Meena Kumari has categorically stated that relationship between the deceased Jharkhandi Ravidas and appellant Mohar Rai was cordial. Murli Ravidas, another son of the victim has been examined as P.W.-5, this witness has stated that his father came to the village from Calcutta on Monday and was taken by Mohar Rai at around 06:00 P.M. for taking liquor and in the night went on the terrace of Mohar Rai with food, where his father has been killed in the night 12-01 A.M. by means of a weapon. This witness has returned to the village from Calcutta on Wednesday then he could learn about the occurrence from his wife and sister. This witness has also alleged that Mohar Rai has illicit relationship with his aunt Shanti Devi wife of Nago Ravidas, which was protested by his father and the he-goat, which was taken by the appellant Mohar Rai has not been returned as demanded by them, for which Mohar Rai used to threatening them. This witness has proved his signature on the inquest report, which has been marked as exhibit-3/2. This witness has further stated during cross-examination that in the morning of Tuesday, his wife and sister have informed him through telephone. Learned counsel for the appellant has further submitted, that as per the evidence of P.W.-5 Murli Rvidas, he is also hearsay witness and learnt about the occurrence by the wife and sister, who have categorically disclosed him that his father has been killed by a weapon on the terrace of the appellant, although such thing has not been stated by the informant P.W.-6 or P.W.-3, Meena Kumari. Jitani Devi informant of the case has been examined as P.W.-6, this witness has stated that her father-in-law came from Calcuatta on Monday and went to haat alongwith Mohar Rai on Tuesday and returned in the evening and thereafter again both went for taking liquor and returned at 08:00 P.M. This witness has stated that her father-in-law has demanded food and after taking food he went to the terrace of Mohar Rai. This witness has also followed his father-in-law alongwith her sister-in-law, Meena Kumari and after her father-in-law climbed over the terrace, both of them returned. While they were sleeping in the house at around 02:00 A.M., Mohar Rai called them to wake up as her father-in-law was crying in pain at the door, thereafter the informant alongwith her sister-in-law came out of the house and saw her father-in-law lying at the door having injury on head and towards right temple from which blood was oozing, her father-in-law has also sustained injury on his left hand, at around 04:00 A.M. the blood started oozing from nose and mouth, thereafter accused Mohar Rai fled away. Doctor has treated the victim but the injured died. During cross-examination, this witness has admitted in paragraph 12 of her cross-examination that in the night itself Mohar Rai went to call doctor and in presence of the co-villager, her father-in-law was treated by doctor and suggestion was given to take the injured to Giridih. Learned counsel for the appellant has further submitted, that from the conduct of the appellant Mohar Rai, it is apparent that he is not the person who is involved in killing the father-in-law of the informant, as the person has sustained injury on the head and right side of the temple area causing, bleeding injury and injury on the left hand. The doctor has categorically stated that such injury may be caused because of fall. The injured was provided medical assistance by the doctor called by the appellant Mohar Rai and the treatment was given in presence of co-villagers but at that time nobody has disclosed or doubted the conduct of Mohar Rai. It is only when the deceased died subsequently a new story has been developed to falsely implicate the appellant who has no motive in killing the deceased, apart from that the postmortem report does not suggest that victim died because of the assault made by such injuries rather doctor has categorically stated as P.W.-1, that both the injuries can be caused by fall and sharp cutting substance. Shaft bone fractured may be caused by hard and blunt surface, as such the appellant cannot be convicted under such background. Ram Lali Ravidas, another son of the deceased, has been examined as P.W.-7, this witness is also a hearsay witness, who also got information from his sister, Meena Kumari (P.W.-3) and the informant Jitani Devi (P.W.-6). Kare Ravidas Assistant Sub-inspector, who has recorded the fardbeyan of the informant in presence of the Officer-in-Charge, has been examined as P.W.-8. This witness has categorically stated that informant has not disclosed in her statement that wound on the head of her father-in-law has been stitched nor he has investigated that how injured got stitched. Meghan Ravidas has been examined as P.W.-9. This witness has stated that in the night of Tuesday at around 02:00 A.M., he heard weeping of daughter and daughter-in-law of Jharkhandi Ravidas and thereafter went there and saw Jharkhandi Ravidas was lying on the door from whose mouth blood was oozing. This witness has been declared hostile by the prosecution. Learned counsel for the appellant has further submitted, that prosecution has miserably failed to prove the guilt against the accused/appellant as there is no eye witness to the occurrence and the entire evidence revolves around the evidence of P.W.-3 Meena Kumari and P.W.-6 Jitani Devi, informant of the case but from perusal of the evidence of P.W.-3 and P.W.-6, it is apparent that this appellant was the person who came to the house of the informant woke up them from sleep as her father-in-law was crying at the door. The appellant went to call the doctor, who has treated the victim but subsequently scummed to the injury. After death of the victim Jharkhandi Ravidas and after arrival of the son of the deceased, the informant has filed the present case alleging that appellant has killed her father-in-law. Learned counsel for the appellant has further submitted, that doctor has found that the injury sustained by the victim can be caused because of fall on hard surface and the case may be suspected case of poisoning. The place of occurrence has not been established by the prosecution nor the weapon of assault has been seized.

Under the aforesaid circumstances, the appellant cannot be held guilty for offence committed under Section 302 of the Indian Penal Code and as there is no motive for the appellant to commit murder of the victim and conduct of the appellant shows that he has tried his best to save the life of the injured. Learned counsel for the appellant has further submitted, that a person, who has assaulted the victim will never try to save the life of the injured so as to get convicted in a case but appellant has taken all steps to save the life of the victim. The conduct of the appellant is not so, which can prove the guilt against the appellant, as such the appellant may be acquitted from the charge and conviction under Section 302 of the Indian Penal Code by the extending benefit of doubt.

Heard, Mr. Arun Kumar Pandey, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted that the First Information Report has been lodged against the appellant and after investigation, the Police has found the complicity of the accused and on the basis of the investigation, the Police has submitted charge-sheet against the accused-appellant. Learned counsel for the State has further submitted that there is circumstantial evidence against the appellant though there is no eye-witness to the occurrence, but the circumstances are such, which prove the guilt of the appellant in committing murder of Jharkhandi Ravidas.

Learned counsel for the State has further submitted that the injured, Jharkhandi Ravidas was protesting the illicit relation of the appellant with his sister-in-law, Shanti Devi and the appellant has earlier slaughtered he-goat because of that the appellant has committed murder of Jharkhandi Ravidas, father-in-law of the informant, as such, the impugned judgment of conviction does not warrant any interference by this Hon'ble Court.

Heard, Mrs. Bakshi Vibha, learned counsel appearing for the appellant and learned counsel for the State, Mr. Arun Kumar Pandey, learned Additional Public Prosecutor and perused the materials available on record, including the First Information Report, framing of the charge, evidence of all the nine prosecution witnesses, four prosecution exhibits, and statement of accused recorded under Section 313 Cr.P.C, as well as impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. Admittedly, there is no eye-witness to the occurrence. The First Information Report has been lodged after a delay. The name of the accused was not taken during life-time of the victim nor any suspicion has been shown against the appellant. It is only after death of the victim- Jharkhandi Ravidas, the daughter of the victim (P.W.3-Meena Kumari) and daughter-in-law of the victim (P.W.6- Jitani Devi), have alleged that the deceased- Jharkhandi Ravidas went to the terrace of the appellant, Mohar Rai alongwith his meal. While the informant, (P.W.6- Jitani Devi) and her sister-in-law (P.W.3-Meena Kumari) were sleeping in the house and at around 02:00 A.M., Mohar Rai called them to wake up as her father-in-law was crying in pain at the door, thereafter the informant along with her sister-in-law came out of the house and saw her father-in-law lying at the door having injury on head and towards right temple from which blood was oozing. The materials brought on record suggests that this appellant, Mohar Rai went to call the Doctor and brought the Doctor for treatment. At that time also no suspicion was raised towards Mohar Rai (appellant) in presence of villagers by P.W.3 (Meena Kumari) or P.W.6 (Jitani Devi) regarding committing such crime. It is only when the victim died and son of the deceased came, the F.I.R. was lodged against the appellant (Mohar Rai). Admittedly no weapon of assault has been recovered during investigation nor any eye-witness has been examined in this case. The injury which has been sustained by the injured i.e. on the right portion of the right ear and right parietal region of the skull with incised wound and on left hand between thumb and index finger, suggest that such injury may be caused by fall on hard and blunt surface. The Doctor (P.W.1) has categorically stated that such injury can be caused by fall on sharp-cutting substance. Shaft bone fracture may be caused by hard and blunt surface. The Doctor has also shown it a suspected case of poisoning. Under the aforesaid circumstances the cause of the death could not be ascertained as Doctor has found it to be a suspected case of poisoning also. The chain of the circumstance has not been proved by bringing the weapon of assault on record or by proving the place of occurrence, coupled with the fact that conduct of the appellant, Mohar Rai in woking up of the informant Jitani Devi (P.W.-6) and Meena Kumari (P.W.-3) and subsequently calling and bringing the Doctor for treatment of the injured, Jharkhandi Ravidas suggests that prosecution has not been able to prove the guilt against the appellant, as none of the persons have seen the occurrence. The conduct of the appellant is such, that he had no motive for committing such crime. The place of occurrence has not been proved, the weapon of assault has not been brought on record, the injury found on the victim can be caused because of fall on hard surface and the Doctor has also opined that it may be a case of suspected poisoning.

Under the aforesaid circumstances, we are of the opinion that prosecution has failed to prove the case beyond all reasonable doubt against the appellant, as such, the appellant deserves to be acquitted from the charge and conviction under Section 302 of the Indian Penal Code, as such, we are of the considered view that conviction of the appellant under Section 302 of the Indian Penal Code cannot be sustained in the eyes of law, as the prosecution has miserably failed to prove the guilt against the accused beyond shadow of all reasonable doubt.

Accordingly, the impugned judgment of conviction dated 12.01.2005 and order of sentence dated 18.01.2005, passed by learned Additional Sessions Judge, Fast Track Court II, Giridih, in Sessions Trial Case No. 356 of 2003 is hereby set aside.

In the result, this criminal appeal stands allowed.

The appellant is directed to be released forthwith, if not wanted in any other case.

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.