Ramjan Mian vs The State of Jharkhand

Prashant Kumar, J.—This appeal is directed against the judgment of conviction and order of sentence dated 28.09.2002 passed by the Additional Sessions Judge, F.T.C.-III, Chatra, whereby and whereunder, appellant has been convicted u/s 304 Part-II of the Indian Penal Code and sentenced to undergo R.I. for seven years and pay fine of Rs. 10,000/-.

The case of the prosecution, in short, as per the fardbeyan of Jahiwoon Khatoon (P.W.-8) is that on 02.06.1992, at about 6 P.M. a quarrel took place between informant and appellant and his brother Maksud Mian for fencing wood. It is further alleged that informant''s husband (deceased) also arrived at the place of occurrence and took part in the said quarrel. It is further alleged that on the instigation of Maksud Mian, Ramjan Mian brought a lathi from the house. Thereafter, Maksud Mian caught hold informant''s husband (Kurban Mian) and then Ramjan Mian gave a lathi blow on his head, due to that, he become injured and fell on the ground. It is then alleged that thereafter the appellant and his brother assaulted Abdul Subhan(brother-in-law of informant) with lathi. It is stated that in the afternoon of 03.06.1992, informant''s husband died.

On the basis of aforesaid information, Tandwa P.S. Case No. 37 of 1992, u/s 302/323/34 IPC instituted and police took up investigation. After completing investigation, police submitted charge-sheet against the appellant Ramjan Mian and his brother Maksud Mian under Sections 302/323/34 IPC. Cognizance of the offence wad taken and then the case committed to the court of Sessions, as the offence u/s 302 IPC is exclusively triable by the court of sessions.

Thereafter learned Additional Sessions Judge, Chatra framed charges against the accused person under Sections 302/34 & 323/34 IPC and same was explained to them, to which they pleaded not guilty and claimed to be tried. Thereafter prosecution examined altogether 11 witnesses in support of its case. After the close of the case of prosecution, statement of appellant and co-accused Maksud Mian have been recorded u/s 313 Cr. P.C. in which their defence is of total denial. It appears that after considering the evidence available on record, learned court below convicted the appellant u/s 304 Part-II IPC and sentenced him as stated above. It further appears that by the same judgment and considering the same evidence available on record learned court below acquitted co-accused Maksud Mian. Against aforesaid judgment of conviction, and order of sentence, present appeal filed by the appellant.

While assailing the impugned judgment, learned Counsel for the appellant submitted that except informant and her daughter, no other witness, including brother-in-law and son or brother-in-law of informant, have supported the case of prosecution. It is further submitted that informant changed the prosecution story in her deposition, which casts a serious doubt on her credibility. It is further submitted that it is admitted by prosecution witness that the relation between the parties is not good. It is then submitted that the informant in her deposition had categorically stated that her statement was recorded by the police on the date of occurrence itself. Investigating Officer (P.W. 9) had also stated that he has recorded fardbeyan on the date of occurrence itself. It is submitted that occurrence took place on 02.06.1992 at about 6 P.M. But from perusal of fardbeyan and first information report it is clear that the fardbeyan was recorded on 03.06.1992 at 3 P.M. Accordingly, it is contended that first version of prosecution has been suppressed and later on appellant and his brother implicated in this case on due deliberation. It is submitted that post-mortem was conducted on 04.06.1992 at 11: 30 A.M. and as per the Doctor, death took place about forty hours before the post-mortem. examination, meaning thereby, deceased died in the night of 02.06.1992. Thus, the time of death shown in the first information report is incorrect. It is submitted that aforesaid discrepancies casts a serious doubt on the prosecution case. Accordingly, it is submitted that appellant is entitled to be acquitted from the charges levelled against him.

Learned APP supports the impugned judgment and submits that since the informant and her daughter categorically stated that the appellant had assaulted the deceased on his head by a lathi, which finds full support from the medical evidence. Thus learned court below has rightly convicted the appellant for the said offence.

Having heard the submissions, I have gone through the record of the case and carefully scrutinized the evidences available on record. In the instant case, entire case of prosecution rests on the evidence of P.W.-7 and P.W.-8 who are daughter and widow of deceased. It is admitted position that there was strain relation between appellant and informant. Under the said circumstance, law requires that the evidence of P.W.-7 and P.W.-8 be scrutinized carefully and if the same are free from any infirmity then only be used for convicting the appellant.

P.W.-8-Jahiban Khatoon (informant) had stated that she had gone to the house of Sarfuddin and Maksood and requested them to return the fencing wood. Whereupon they abused her. She further deposed that Maksud assaulted her and then she also assaulted him. Thereafter, she was going to approach Panches. During that period her husband was returning from doing his job. She further deposed that during that period accused persons assaulted her brother-in-law Abdul Subhan. She then deposed that she returned to the house of accused persons along with her husband. She further deposed that after reaching there she saw that accused persons were assaulting Abdul Subhan, She then deposed that when her husband forbade them from assaulting Maksud Mian caught hold him and then Ramjan Mian gave a lathi blow on his head, due to that her husband fell on the ground. Later on he was brought to the house in unconscious position and after some time, he died. Thereafter her statement was recorded by the police and dead body, was sent for post-mortem. Thus the story narrated by the informant (P.W.-8) in court is different from the story stated in the fardbeyan. Thus genesis of occurrence, manner of occurrence stated in the fardbeyan is totally different from that of deposition of informant in court.

P.W.-7-Rabina Khatoon (daughter of informant) had given a different story. She has stated that her father before leaving to do his work as daily wages asked the informant (P.W.-8) for bringing fencing wood from forest. But when her mother went to forest, she found that fencing wood was taken away by the accused persons. She then states that when her father returned then her mother informed him about the same. Thereafter her father went to the house of accused persons, where he had been killed. Thus she gave a different story about the occurrence. Thus two witness who are claiming themselves to be the eye witness of the occurrence are giving different story of the occurrence.

In the instant case, all the other witnesses including the brother-in-law of informant P.W.-3 and son of brother-in-law of informant P.W.-1 had not supported the case of prosecution and they had been declared hostile. Since P.W.-7 and P.W.-8 are giving different story about the manner of occurrence, therefore, their evidence cannot be used to convict the appellant without seeking corroboration from independent source.

In the instant case, I find yet another vital irregularity. P.W.-8 (Informant) in her fardbeyan stated that deceased died in the afternoon of 03.06.1992, but she deposed in court that her husband died on the date of occurrence. She then categorically deposed that police arrived in the village just after the death of her husband and took her statement. Thus according to the P.W.-8 her statement was recorded by the police on the date of occurrence itself i.e. on 2.06.1992. P.W.-9 (Investigating Officer) had also admitted at paragraph No. 15 of his deposition that he recorded fardbeyan on the date of occurrence itself. From perusal of fardbeyan Ext.-3 it is clear that same was recorded on 03.06.1992 at 20:30 hrs. Thus fardbeyan recorded by the police on 02.06.1992 has not been brought on record. Thus it appears that first version of prosecution story has been suppressed, which casts a serious doubt in the case of prosecution.

In view of the discussions made above, I find that prosecution has not been able to prove the charges levelled against the appellant beyond the shadow of all reasonable doubts, therefore appellant is entitled for benefit of doubt. Accordingly, impugned judgment of conviction and order of sentence cannot be sustained in this appeal.

In the result, this appeal is allowed. The appellant is acquitted from all the charges levelled against him. Impugned judgment is hereby set aside. Appellant is discharged from the liability of bail bond furnished by him.