High Court · 2012

Having found the accused guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentio ned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal.

6. While considering the present appeal, it needs to be noted, at the very outset, that PW2, mother of PW4, was examined as an eye witness to the alleged o ccurrence of assault of killing of Paban by the accused-appellant. The evidence of PW4 is, therefore, extremely important. Her evidence, in the examination-in-c hief, is to the effect that on the day of the occurrence, at about 7/8 pm, Paban came to his house and sought to sleep there and, on being permitted by her, Pab an slept there, but a short while thereafter, accused Jiten came and dealt some blows on Paban. It is in the evidence of PW2 that having seen the accused assult ing Paban, she felt scared and did not return home at night and when, on the fol lowing day, in the morning, she returned home, she found Paban’s dead body insid e the house.

7. What is extremely important to note, in the evidence of PW2, is that in her cross-examination, she has clearly admitted that she cannot see well at nigh t and, at the sight of the appearance of the man, who had injured Paban, she tho ught that the man was Jiten, i.e., the accused-appellant. Thus, when PW2 herself was not confident that the man, who had hacked Paban, was accused Jiten, it is wholly unsafe to rely or depend on the evidence of PW2 to hold that it was the a ccused, who had hacked Paban to death. The learned trial Court could not have, t herefore, take the unsafe evidence of PW2 as a basis for founding conviction of the accused thereof. Close on the heels of the evidence of PW2, PW4, whose house became the p 8. lace of occurrence, as mentioned above, has deposed that on the night of the occ urrence, he was watching TV at the house of Budu Bhumij, father of accused Jiten Bhumij, and when he was so watching the TV, the accused came there and told his father that he had come after cutting a man. It is also in the evidence of PW4 that upon being asked, the accused told him (PW4)that he had come after cutting Paban at the house of PW4, whereupon PW4, taking along with him Bantu, younger b rother of the accused, went to his house and found Paban lying in a pool of bloo d. PW4 has also deposed that he went to the house of their VDP Secretary, i.e., PW1 and told him that Jiten had cut Paban.

9. What is, now, necessary to note is that PW4 is the person in whose house Paban’s dead body was found. His evidence, therefore, requires a microscopic ex amination and the Court has to be fully confident that his evidence can be impli citly relied upon. In this regard, one cannot avoid noticing that in the cross-e xamination, PW4 has admitted that at the time, when he was watching TV, others, such as, Manua Bhumij, Bantu Bhumij, Ganesh Bhumij and Budu Bhumij were also pre sent. Though it was the duty of the investigating officer to find out, during th e course of investigation itself, if there was any other person present at the t ime, when PW4 claimed to have been watching TV at the house of Budu Bhumij (PW3) , no such thing was, unfortunately, done by the investigating officer and, above all, even when the names of Manua Bhumij, Bantu Bhumij, Ganesh Bhumij and Budu Bhumij appeared, in the cross-examination of PW 4 as material witness, police ne ither carried out any further investigation by examining the said persons nor we re they called to give their evidence by the prosecution.

10. In the circumstances, as indicated above, the conviction of the accused- appellant, depending entirely on the evidence of PW4, is too unsafe and ought no t to have been done.

11. There is no dispute, as can be clearly seen from the evidence of the doc tor (PW6), that Paban had sustained homicidal injuries resulting into his death inasmuch as the doctor (PW6) has deposed that he performed post mortem examinati on on the dead body of Paban Bhumij on 15-02-2005, at about 3 pm, and found as f ollows: (cid:28)Male around 29 yrs, Rigor mortis present. Injuries No. 1 - 4 incised transverse wound were left temporo occipital area of scalp with fracture of under lying oc cipital bone. (2) 4 (cid:29) x ‰ (cid:28) transverse incised wound over left shoulder, muscle deep. (3) 2 (cid:29) x ‰ (cid:28) incised wound over lower lip right side.

4. Multiple incised wound over upper cervical region neck. Upper cervical verteb rae transacted over about 7 incise wound seen over the area incising under lying muscle cervical vertebrae and spinal cord. One of the neck wound extends to the left side of face and left pina of ear inci se. Cranium and spinal canal - Spinal cord transacted upper cervical vertebrae level between cervical 3 and cer vical 4. Abdomen - All organs healthy. Thorax - All organs healthy. Muscles bones and joints - Fracture occipital bone of scalp. Fracture cervical 3 and 4 vertebrae. (cid:29)

12. PW6 has opined that the wounds were ante mortem in nature and that the s aid deceased met with death, because of the coma, which resulted from the injuri es sustained, the injuries having been caused by dao, which is M. Ext. 1, and th at the Injury No. 4 was independently sufficient to cause death of a person in o rdinary course of nature.

13. From the injuries, which had been found on the dead body of Paban, there can be no escape from the conclusion, as we have already pointed out above, tha t he had been injured and killed. What we must hasten to add is that there is no thing in the evidence on record to show that M. Ext. 1 was the weapon of offence . In such circumstances, even if one finds that M. Ext. 1 was seized from the po ssession of the accused, such a seizure would not prove, and cannot be taken to have proved, that the accused-appellant had killed Paban.

14. Because of what have been discussed and pointed out above, we do not fin d that the prosecution has been able to adduce sufficient, cogent and clinching evidence proving that it was none, but the accused-appellant, who had hacked Pab an to death. In such circumstances, the accused-appellant ought to have been giv en, in our considered view, at least, benefit of doubt.

15. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and order convicting the accused-appellant stand hereby s et aside. The accused-appellant is held not guilty of the charge framed against him and he is acquitted of the same under benefit of doubt.

16. to be detained in connection with any other case. The accused-appellant be set at liberty forthwith unless he is required

17. tand disposed of. With the above observations and directions, this criminal appeal shall s

19. Send back the LCR. The Amicus Curiae shall be paid a sum of Rs. 3,500/-.