The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No. 280 of 1995 (Against the judgment of conviction and order of sentence both dated 30.08.1995 & 31.8.1995 passed by Sri Swaroop Lal, learned 1st Additional Sessions Judge, Godda in Sessions Case No.17 of 1991/11 of 1995, arising out of Godda P.S. Case No. 22 of 1987 dated 09.04.1987) 1. Lal Tudu 2. Rushna Tudu 3. Karan Tudu 4. Mangal Marandi 5. Karma Soren All residents of Village Panchratan, P.S. Deonrar, District Godda. State of Bihar Versus --------- ... ... … … ... ... Appellants Respondents CORAM: SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. ---------
Legal Reasoning
For the Appellants: For the Respondents: Mr. Bhola Nath Ojha, APP Mr. Sahil, Amicus Dated: 05.05.2023 --------- Upon hearing the learned counsel for the parties, this Court passed the following, (Per. Sanjaya Kumar Mishra, C. J.) JUDGMENT 2. The appellants in this case have assailed their judgment of convic- tion dated 30.08.1995 under Sections 302 & 201 read with Section 34 of the IPC, 1860 (hereinafter referred to as ‘IPC’ for brevity) and order of sentence dated 31.8.1995 whereby they are directed to undergo rigorous imprisonment for life for the offence punishable under Sections 302/34 and further also sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 201/34 IPC in Sessions Case No.17 of 1991/11 of 1995 by the 1st Additional Sessions Judge, Godda, arising out of Godda P.S. Case No. 22 of 1987 dated 09.04.1987. 3. The facts of this case shorn of all necessary details is that the de- ceased Manjhi Tudu and the accused persons, total eight in number went -2- to their Janguru, who resided at village Beltikari. In the presence of Jan- guru, it was alleged that mother of Manjhi Tudu was a witch and Janguru performing certain magic stated that the mother of Manjhi Tudu is a witch. He was saddled with a fine of Rs.400/- and the said money was deposited by the Manjhi Tudu. On 09.04.1987 all these persons pro- ceeded from Beltikari to their own village. They came to Hansdiha on foot and from there they took a bus to Poraiyahat. From Poraiyahat they started and came to Joriya on foot. Near the river when the informant was attending call of nature, he heard the deceased crying and, therefore, he proceeded towards the place from where the noise was coming. In the side of Joriya, he saw the accused persons assaulting and thrashing Manjhi Tudu. He further saw Bhaiya Ram Tudu giving a dagger blow, upon which the victim fell on the ground and died. The accused persons gave threat to the informant and stated not to reveal the matter to any- body. The informant returned to his house. When his mother-in-law en- quired about his son i.e the deceased, the accused persons told that he had taken other path for returning. The informant also did not reveal about the incident to anybody because of fear. Then mother-in-law and sister-in-law of the informant took the informant with them and pro- ceeded to search out Manjhi Tudu. On the way, the informant informed about the incident to them. He brought them to the place in Kasiajore where the dead body of Manjhi Tudu was thrown in a ditch. There he kept his mother-in-law and sister-in-law and went to Poraiyahat police station thereafter police came and started investigation of the case. 4. After completion of investigation, charge-sheet was submitted against five accused persons namely Lal Tudu, Rushana Tudud, Karan Tudu, Mangala Marandi &Kamo Soren. Out of all these persons expect -3- Lal Tudu and Rushana Tudu, all of them died during the pendency of the Criminal Appeal. Both appellant nos.1 & 2, Lal Tudu & Roshan Tudu respectively are on bail granted by this Court. 5. In order to prove their case, the prosecution has examined seven witnesses in total. P.W.7 Some Hansda is the informant of the case. He is the only eye witness to the occurrence. Rest of the witnesses are co-vil- lagers and also formal witnesses to inquest & seizure etc. It may be taken note of that prosecution has not examined the doctor who has conducted the post-mortem on the dead body of the deceased. Investigating Officer has also not been examined. Neither the FIR nor the post-mortem report has been proved in this case. 6. We have examined the statement of P.W7 namely Some Hansda. He stated in examination-in-chief that on Tuesday all of them went to Janguru where Bhaiya Ram and others alleging that the mother of Manjhi Tudu was a witch. Janguru did some black magic and declared that the mother of the deceased is a witch and imposed a fine of Rs.400/-.Fine of Rs.400/- was deposited by the deceased before Janguru. Thereafter they came back to their own village. On the way, near the river informant went to attend call of nature and at that time he heard the noise of Manjhi Tudu and saw that Bhaiya Ram Tudu, Lal Tudu, Munilal Tudu, Matal Tudu, Karan Tudu, Rushna Tudu, Kamo Soren & Mangal Marandi were as- saulting the deceased. After some time, Ram Tudu took out a knife and assaulted the deceased. The other accused persons assaulted by means of Lathi. As a result of assault, the deceased Manjhi Tudu fell on the ground and died. The informant P.W.7 was threatened by the accused persons, not to reveal the incident to anybody. He came and stated about the inci -4- dent to the mother of Manjhi Tudu. Thereafter, they went near the dead body of the deceased. Mother and sister of Manjhi Tudu went to police station for reporting about the incident. In cross-examination, he stated that he was attending call of nature on the banks of the river when he heard the cries. He heard the cries from about 200-250 yards. There were bushes near the spot. Witnesses further stated that after completing his call of nature, he went and ate his meal consisting of rice and thereafter he went to the spot wherefrom he heard the sound and saw that Manjhi Tudu was already dead. In the cross-ex- amination he has further stated that after returning home with the accused person he did not disclose about the incident to anybody till two days. He has clarified that on Wednesday he came back to the house but on the following Thursday and Friday he did not reveal it to anybody. On Sat- urday his mother-in-law and sister-in-law came to his house and re- quested him to accompany them to go in search of Manjhi Tudu. Upon their request, he accompanied to the place where the dead body was lying inside a ditch. He further stated that he left his mother-in-law and sister- in-law near the dead body of the deceased and went on to police station for lodging the FIR. FIR has been accordingly, lodged. 6. As noted earlier, the prosecution has not examined the doctor who has conducted the post-mortem examination. In a case of murder, the first duty that is upon the prosecution, is to establish that the death of the de- ceased was homicidal in nature. In this case, there is no evidence on rec- ord, though allegedly the dead body of the deceased was put to post-mor- tem examination and a report was prepared by the doctor. However, no -5- explanation has been offered by the prosecution as to why the doctor has not been examined and even if the doctor was not available to be exam- ined in the court why the post-mortem report was not proved by Second- ary evidence or by examining any other witness who could be acquainted with the handwriting of the doctor who had conducted the post-mortem examination or who had witnessed the post-mortem examination or the preparation of the post-mortem report. Thus, there is not absolutely no materials on record to come to a conclusion that the prosecution has es- tablished that the death of the Manjhi Tudu was homicidal in nature. The investigating officer has also not been examined in this case and FIR has not been proved. Mere none exhibiting of the FIR will not vitiate the conviction or the criminal trial but it will definitely have a cumulative effect on the veracity of the prosecution case. 7. In course of argument, learned counsel for the appellants submits that it is illegal to convict a person on the version of the solitary eye wit- ness. However, Section 134 of the Indian Evidence Act, 1872, provides that no particular number of witnesses are necessary to be examined to prove a fact. In fact the Hon’ble Supreme court in the case of Vadivelu Thevar Vrs. State of Madras reported in (1957) 0 SCR 981 has held that it is not illegal to convict a person on the basis of the evidence of a soli- tary eye witness. But while doing so care should be taken to see that the evidence of the solitary eye witness inspires confidence of the court. In this case, the solitary eye witness is not an independent witness as he is a relative of the deceased. Of course, there is no rule of law that a relation cannot be relied upon by the court, in fact there is no rule of law or rule of appreciation that the evidence of a related witnesses needs corrobora -6- tion but it is also settled law that evidence of such witness who may be interested in seeing the accused persons being convicted should be care- fully assessed and examined. In the aforesaid judgment of the Hon’ble Supreme Court further held that witnesses are generally categories into three classes viz., a witness who is wholly reliable, a witness who is wholly unreliable and third category of witness who is neither wholly reliable nor wholly unreliable. The duty of the court becomes easy in the first two cases where the witness is either considered wholly reliable or wholly unreliable and accordingly, the issue on question of fact can be decided. However, the difficulty arises when a witness is neither wholly reliable nor wholly unreliable. 8. In considered opinion of this Court and from the experience that we have gathered is that most of the witnesses fall in the third category and in such cases, if a witness is neither wholly unreliable nor wholly reliable then it is appropriate to scrutinize the evidence of sole witness and also seek independent corroboration, not necessarily in the shape of direct evidence or narration of eye witnesses but corroboration from ob- jective circumstances. We have consistently held that in a case where the prosecution relies upon a solitary eye witness, the court should convict a person on the basis of the version of the solitary eye witness only if his or her evidence fits into anvil of the objective circumstances appearing in that case. In this case, the objective circumstances are singularly lack- ing. Firstly Janguru has not been examined. He is the person to whom all the accused persons along with the deceased and the witness went for settlement of the dispute. The post-mortem report has not been marked as Exhibit and the doctor has also not been examined, so it cannot be -7- proved by the prosecution that the death of the deceased is homicidal in nature and that he died because of assault by means of Lathi and a knife. The investigating officer has also not been examined in this case who could have set light on the question of investigation especially regarding the inquest and other related aspects. So, this court is of the firm opinion that the objective circumstances which generally appear in a case of mur- der are singularly lacking and, therefore, we cannot consider whether the evidence of P.W7 is fits into the anvils of the objective circumstances appearing in this case. 9. Moreover taking the evidence of P.W7 it is seen that PW7 has stated in the examination in chief that after returning from the place, i.e, after the occurrence, he came to his house and intimated about the inci- dent to his mother-in-law and sister-in-law but in cross-examination he has stated that for two days i.e Thursday and Friday he did not reveal about the incident to anybody and on Saturday he led his mother-in-law and sister-in-law to the spot where the dead body of the deceased was lying. This is a major contradiction which makes the evidence of P.W7 more dubious. Furthermore, he has stated in examination in chief that after taking mother in-law and sister in law of the witness to the spot they left the dead body and went to the police station to give a report. How- ever, in cross examination he stated that he left his mother in-law and sister in law near the dead body and went to the police station to lodge the FIR. The case of the prosecution is that PW7 himself had lodged the FIR. Thus, there is major contradiction on this aspect also. 10. Keeping in view the entirety of the facts of the case and discus- sions stated herein above, this Court is of the opinion that the prosecution has failed to prove its case beyond all reasonable doubt and there is -8- enough doubt regarding the complicity of appellant nos. 1 & 2, who were surviving at present in commission of murder of Manjhi Tudu. 11.
Decision
In that view of the matter, we hold that the prosecution has not able to establish the charge under Section 302/34 of the IPC. Consequently, the offence under Section 201/34 IPC is also not proved. In the result, the appeal is allowed. The conviction of the surviving appellant nos. 1 & 2 named above, and their sentences passed under Sections 302/34, & 201/34 of the Indian Penal Code, 1860 passed by the 1st Additional Ses- sions Judge, Godda, arising out of Godda P.S. Case No. 22 of 1987 dated 09.04.1987 are hereby set aside. The appellant nos. 1 & 2 are acquitted of the offences. The appellant nos. 1 & 2 are on bail. They be set at liberty for cancelling the bail bond executed by them before the trial court. 12. We express our appreciation for Mr. Sahil, learned Amicus for the assistance he has provided to us in hearing and disposing of the appeal and arguing the case pro bono. 13. All pending Interlocutory Applications stand disposed of. 14. Urgent copies as per Rules. (Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.) High Court of Jharkhand at Ranchi Dated 5th day of May, 2023 A.F.R./Anjali