Prabal Lakra vs State Of Bihar (now Jharkhand)

Rongon Mukhopadhyay, J

Since both these appeals arise out of a common judgment, they are being disposed of by this common order.

Heard Mr. V.P. Singh, learned senior counsel for the appellants and Mr. Manoj Kumar Mishra, Learned A.P.P.

These appeals are directed against the judgment and order of conviction and sentence dated 29.01.1999 (sentence passed on 01-02-1999) passed by Shri Alok Kumar Sinha, learned 6th Additional Judicial Commissioner, Ranchi in S.T. No. 672/94 whereby and whereunder the appellants have been convicted for the offence under Section 302/34 I.P.C and have been sentenced to undergo rigorous imprisonment for life.

The prosecution case arises out of the Fardbayan of Mary Demta recorded on 02.06.1994 in which it has been stated that Jidan Demta, the husband of the informant, was the driver of a private vehicle. It has been alleged that on 29.05.1994 while the husband of the informant was returning from duty, he was assaulted by the accused persons who are the neighbours of the informant and was thrown across the road. The accused persons thereafter came to the house of the informant and disclosed that they have committed the murder of her husband. A threat was also issued of eliminating the family members of the informant if the matter was disclosed outside. The informant, in course of search of her husband, found him lying unconscious in a field. It has been stated that the informant thereafter went to Dhumsa Toli and informed about the incident to Munni Demta, Bindi Demta @ Gundi Demta and Sukwari @ Sukhmani Demta. The informant and these three persons, who are her sisters-in-law, went to the place of occurrence and somehow managed to bring the husband of the informant back home. On 30.05.1994 the informant had got her husband admitted in RMCH, Ranchi and after he regained consciousness, he had disclosed about Babu Toppo, Kalo Lakra and Prabal Lakra of having assaulted him with iron rod and crowbar and throwing him in the field. The incident had occurred as a retaliation to the threat given by the husband of the informant to the accused persons on account of their attempt to drag the informant from the house which occurred a month prior to the incident of assault. On 02.06.1994 the husband of the informant breathed his last.

Based on the aforesaid allegations, Chutia P.S. Case No. 72 of 1994 was instituted under Section 302/34 I.P.C. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as S.T. No. 672 of 1994. Charge was framed against the accused under Section 302/34 I.P.C which was read over and explained to them to which they pleaded not guilty and claimed to be tried.

The prosecution has examined as many as eight witnesses in support of its case.

P.W. 1 Saban Bhengra has stated that on 29.05.1994 at 10.30 p.m. he was at Dhumsa Toli as he was constructing his house there. On 30.05.1994 he had gone to the house of Jidan Demta and found him in an unconscious state. The wife of Jidan Demta had disclosed that Babu, Kalo and another boy whose name he does not remember, had committed assault upon her husband. He had asked her to take Jidan Demta to RMCH for treatment. Jidan Demta was thereafter taken to RMCH where he died on 02.06.1994. The Police had recorded the Fardbayan of Mary Demta in the hospital in his presence. He had also signed on the Fardbayan which has been proved and marked as Exhibit-1. The inquest report was prepared in his presence.

In cross-examination he has deposed that he had not witnessed the assault. Prior to going to the house of Jidan Demta he was not aware about the incident. Jidan Demta was his younger brother. Jidan Demta sometimes used to consume liquor. He has further deposed that Jidan Demta had not died in his presence in the hospital.

P.W.2 Munni Demta did not support the case of the prosecution and was declared hostile by the prosecution.

P.W.3 Sukwari @ Sukhmani Demta has stated that it was 10.00 p.m. and she was in her house when Mary Demta, her sister-in-law came and disclosed that Jidan has been assaulted. She along with her two other sisters-in-law accompanied Mary Demta and went to the field where she saw Jidan Demta lying in an injured condition. They managed to take Jidan Demta home. Jidan Demta was not in a position to speak. When Jidan Demta was brought to his house, Mary Demta had disclosed that Jidan Demta had been assaulted by Prabal, Kalo and Babu. Jidan Demta was kept at home in the night and in the next morning he was taken for treatment to RMCH where he died after two days.

In cross-examination she has deposed that she had not witnessed the incident. She had never heard of any animosity between Jidan Demta and the accused persons.

P.W.4 Gundi @ Bundi Demta has been tendered by the prosecution.

P.W.5 Mary Demta is the informant and the wife of the deceased who has stated that she was in her house while her husband had gone to attend his duty. Babu Toppo, Kalo Lakra and Prabal Lakra had come to her house and disclosed that they have committed assault upon her husband. They had also issued a threatening that if the incident is disclosed to anyone, her entire family will be eliminated. She thereafter started searching for her husband and could locate him in a field lying unconscious. She had gone to Dhumsa Toli where she informed about the incident to her sisters-in-law who accompanied her to the place where her husband was lying and they managed to bring him back to his house. On the next day she had brought her husband to RMCH where after treatment her husband regained consciousness and disclosed that Babu Toppo, Kalo Lakra and Prabal Lakra had assaulted him with rod and crowbar. About a month prior to the incident Babu Toppo had tried to drag her which was objected by her husband and which led to an enmity between both the sides. After two days of getting her husband admitted in RMCH, he died. The Police had come and had recorded her Fardbayan. An inquest report was prepared in which she had put her thumb impression.

In cross-examination she has deposed that prior to the death of her husband she had not instituted any report in the Police Station. Her husband had regained consciousness on 30.05.1994. The statement of her husband was recorded by a Doctor. She had not witnessed the incident. She was informed about the incident by the accused persons themselves. The accused Prabal Lakra was intending to construct a house in front of her house at which her husband had requested Prabal Lakra not to construct the house right in front of the door after which the house was never constructed. She has deposed that her husband was a driver who sometimes used to consume liquor. After coming to know about the incident she had gone in search of her husband alone. The place of occurrence is at a distance of half a kilometer from her house. She had not got treated her husband by a Doctor after he was brought home. There was no enmity with the accused persons.

P.W. 6 Charan Murmu was posted as a Sub-Inspector of Police at Chutia P.S and on 02.06.1994 he had received the Fardbayan of Mary Demta from Bariyatu P.S. Along with the Fardbayan the inquest report was also received and based on these documents Chutia P.S. Case No. 72 of 1994 was instituted. He has proved the Fardbayan which has been marked as Exhibit-2. He has proved the handwriting of Tileshwar Rai in the endorsement in the Fardbayan which has been marked as Exhibit-3. He has proved his endorsement in the Fardbayan which has been marked as Exhibit-3/1. The formal FIR has been proved and marked as Exhibit-4. After registering the case he had taken over investigation. He had recorded the restatement of the informant and had inspected the place of occurrence which is the Parti land of Mahadev Mahto at Machkun Toli situated in the Bahubazar, Namkum Road. On 20.06.1994 on the orders of the Inspector of Police the investigation was handed over to Girija Prasad Sharma, the Officer In-charge of Chutia PS.

In cross-examination he has deposed that he had not recorded the statements of the persons who were residing near the place of occurrence. He had not seized any article from the place of occurrence. No blood was also found at the place of occurrence. The Fardbayan was not recorded in his presence. The house of the informant and the accused share a common courtyard. He had recorded the statement of Munni Demta, Sukwari Demta and Bindi Demta. On 16.06.1994 he had obtained the post-mortem report from RMCH. He had not received any dying declaration of the deceased.

P.W.7 Girija Prasad Sharma had taken over investigation from Charan Murmu who had gone on deputation and when he returned, he was handed back the investigation.

P.W.8 Dr. Arun Kumar Sinha was posted as a Medical Officer in the Forensic Medicine Department of RMCH, Ranchi and on 02.06.1994 he had conducted autopsy on the dead body of Jidan Demta and had found the following:

Abrasion:-

(i) 4 x 1 cm on left elbow back.

(ii) 2 / 1 cm, 2 x ½ cm and ½ x ½ cm on right elbow back

(iii) 2 x 1 cm. on the left knee front.

(iv) 2 x ½ cm, and ½ x ¼ cm on front of neck

(v) 2 x 2 cm. on fore head 2 cm right from midline.

Internal:-

There was diffuse contusion of right temporal scalp and right temporalis muscle. There was acute diffuse peritonitis with presence of pus and faecal matter in abdominal cavity. There was tear of small intestine.

The above noted injuries were anti-mortem caused by hard and blunt substance. The cause of death was opined to be due to peritonitis as a result of tearing of small intestine. The xerox copy of the post-mortem report has been marked ‘X’ for identification.

On examination on recall he has proved the carbon copy of the post-mortem report which has been marked as Exhibit-5.

The statements of the accused were recorded under Section 313 CrPC in which they have denied their complicity in the commission of the murder.

It has been submitted by Mr. V.P. Singh, learned Senior Counsel for the Appellant that there are no eyewitnesses to the occurrence. The prosecution has failed to bring on record any evidence of substance indicating about the deceased having been admitted in RMCH. The dying declaration of the deceased, as per P.W.5 recorded by a Doctor, has never been produced nor the said Doctor examined in order to have some basis for the said assertion. There has been a delay of four days in lodging the First Information Report and the silence on the part of the informant speaks volumes about the reliability of her evidence. The circumstances put forward by the prosecution are feeble in nature which cannot lead to a conviction but the learned trial court has based its judgment primarily on surmises and conjectures.

Mr. Manoj Kumar Mishra, learned A.P.P has submitted that the dying declaration of Jidan Demta indicates the culpability of the appellant in committing his murder. Apart from the informant (P.W.5), P.W.3 who is a sister-in-law of the informant, has also stated about being disclosed about the names of the assailants by P.W.5 who had come to know of the same from her deceased husband. Such strong circumstances definitely warrant dismissal of both these appeals.

We have heard the learned counsel for the respective sides and have also perused the trial court records.

The assault upon the husband of the informant was, as per the informant, disclosed by the assailants themselves with a further ryder that if the incident is disclosed to others the family members of the informant would be eliminated. The assault was said to have been committed in a field at some distance from the house of the informant and as per P.W.6 the said place was surrounded by several houses. The manner of assault as depicted by the informant seems to indicate the surreptitious nature of the same and the natural human conduct in such circumstances would be to keep it under wraps rather than project oneself as being involved in the murder. The other feature seems to be the conduct of the informant (P.W.5) who on being informed by the accused about the murder and the threat issued to her went alone to the place of occurrence, saw her husband lying in an injured condition and without raising any alarm she went to Dhumsa Toli, informed her three sisters-in-law, came back with them to the place of occurrence and managed to take back her husband to his home. Nothing has been described as to how all four females had taken Jidan Demta home when he was in an unconscious state. The entire episode as depicted by P.W.5 appears to be too mechanical and devoid of natural human reaction. After having brought her husband home P.W.5 did not inform either a Doctor or to the Police Station. In the next morning, P.W.5 is said to have taken her husband to RMCH for treatment where he died on 02.06.1994. There is no chit of paper produced by the prosecution to substantiate the fact that Jidan Demta was indeed admitted in RMCH. The dying declaration purportedly recorded by a doctor, as per the evidence of P.W.5, is also not on record. One of the sisters-in-law has been tendered by the prosecution while another has been declared hostile. P.W.3 though has stated about P.W.5 informing her about the manner of assault, but it seems as per the cross-examination of P.W.5 that her husband had regained consciousness on 30.05.1994 and as such there was no occasion for P.W.5 to have known the name of the appellants which was perhaps the reason for making the accused person render an extrajudicial confession which apparently was by way of an afterthought. The Investigating Officer (P.W.6) has not found any incriminating articles or any blood stains at the place of occurrence to add muscle to the prosecution case. There is an absolute dearth of evidence to implicate the appellants. A semblance of enmity has been mooted by P.W.5 which, in the facts and circumstances of the case, can be said to be a reason for false implication of the appellants.

On an overall conspectus of the case we find that the prosecution has miserably failed to prove its case and consequently we set aside the judgement and order of conviction and sentence dated 29.01.1999 (sentence passed on 01.02.1999) passed by Shri Alok Kumar Sinha, learned 6th Additional Judicial Commissioner, Ranchi in S.T. No.672/1994.

These appeals are allowed.

Since the appellants are on bail, they are discharged from the liability of their bail bonds.

Pending interlocutory application(s), if any, stand(s) closed.