High Court
Case Details
Criminal Appeal (D.B.) No. 317 of 2024 ---- [arising out of Judgment of Conviction and Order of Sentence dated 3rd July, 2023 passed by the Sessions Judge, Chaibasa in Sessions Trial No. 226 of 2021] ---- Gumdi Buruli @ Donda Biruli S/o late Uday Biruli, resident of Village Deurisai, Tantnagar, PO PS Manjhari, District West Singhbhum. The State of Jharkhand -versus- ---- … … Appellant Respondent For the Appellants : Ms. Pragati Prasad, Advocate For the Respondent : Ms. Vandana Bharti, A.P.P. ---- PRESENT: SRI ANANDA SEN, J. SRI SUBHASH CHAND, J. ---- J U D G M E N T Per Ananda Sen, J. The appellant has preferred this appeal against the Judgment of Conviction and Order of Sentence dated 3rd July, 2023 passed by the Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 226 of 2021, whereby and whereunder the appellant has been held guilty and convicted for the offence under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/- and in default of payment of fine to further undergo simple imprisonment for one year. 2. This appeal has already been admitted on 09.04.2024 and Trial Court Records are attached and is available. This appeal has been listed today for purposes of consideration of the interlocutory application being I.A. No.5842 of 2024 filed by the appellant, wherein the appellant has prayed to release him on bail during the pendency of the above mentioned appeal filed by the appellant before this Court. 3. While arguing the interlocutory application to release the appellant on bail, after suspension of sentence, learned counsel for the appellant has taken this Court through the entire evidence led by the prosecution in detail. Learned counsel read the depositions of witnesses and also referred to the documentary evidence in support of contention that 1 the appellant needs to be released on bail. Learned A.P.P. for the State opposed the prayer for bail of the appellant and apprised this Court with the entire evidence. In fact, appeal, entirely, was heard on merit. 4. When the appeal entirely has been heard on merit and nothing more was left to be argued, we proposed to dispose of the appeal itself at this stage, considering that the same has been admitted and Trial Court Records are also before us.
Legal Reasoning
Both the learned counsel for the appellant and the State agreed to the said proposal and have submitted that they are having all the documents including the evidence, which they have placed before us while arguing on the interlocutory application seeking bail, and is, in fact, the argument they will put forth at the stage of final hearing of the appeal also. Considering the aforesaid fact and on consent of the parties, this appeal is taken up for final hearing as we have heard the parties at length. 5. Learned counsel for the appellants submits that from the facts as narrated by the prosecution, no case under Section 302 of the Indian Penal Code is made out against the appellant. She also submits that there is a vital contradiction in evidence of the witnesses, who have been examined in this case. She also submits that in DNA report it has been found that the murder weapon “Tangi” was having blood of human, but it has not been proved that it was blood of the deceased. She further submits that the allegation leveled against the appellant regarding his involvement in the occurrence is false and concocted as there is solitary evidence of P.W.3 Basanti Buruli, who claimed to be an eye witness, which in fact she is not, and all other witnesses have been declared hostile in this case. Learned counsel further submitted that the Court below failed to take into consideration that the confessional statement of the appellant was recorded on 23.05.2021 at 20.00 hours and seizure list was prepared on 23.05.2021 at about 18.45 hours, which is before recording confessional statement of the appellant, thus, it cannot be said that the murder weapon “tangi” was recovered as per disclosure made by the appellant. Learned counsel further submits that the prosecution has not been able to prove the charges against the appellant beyond shadow of all reasonable doubts. It is her submission that except P.W.3, namely Basanti Baruli (wife of the deceased), all the 2 prosecution witnesses have been declared hostile. On these grounds, learned counsel for the appellant sought for acquittal of the appellant. 6. Learned A.P.P. for the State submits that the learned Trial Court has correctly convicted the appellant as there are sufficient materials as against the appellant to prove his guilt. She submits that P.W.3 has narrated the incident in her evidence and the nature of assault as stated by the P.W.3 is also corroborated by the medical evidence inasmuch as the doctor has found the injuries both external and internal on the person of the deceased and has opined that the cause of death is hemorrhage and shock due to the injuries caused by hard, heavy and sharp object. She submits that it is not the quantity rather quality of evidence, which is essential for holding an accused guilty of the offence, which is present in this case. She submits that from the evidence of the P.W.3 and the medical evidence, the prosecution has been able to establish the guilt of appellant. Thus, he submits that the impugned judgment of conviction and order of sentence needs no interference by this Court. 7. We have heard the learned counsel for the appellant and the learned A.P.P. for the State and have also gone through the records and the entire evidence. 8. Prosecution case is based on the fardbeyan of the informant (P.W.3) Basanti Biruli, who stated in her fardbeyan that Gumdi Biruli was cutting the Acacia (Babul) tree belonging to the share of Basanti Biruli and Santan Biruli, but when the latter objected, Gumdi Biruli hit him on the head and neck with a tangi (an axe), due to which blood started flowing and her husband died on the spot. 9. On the basis of the aforesaid fardbeyan of the informant, Manjhari P.S. Case No.18 of 2021 was registered for offence under Section 302 of the Indian Penal Code as against the appellant. Police took up the investigation and on completion of the investigation, filed chargesheet No.43 of 2021 on 05.08.2021 under Section 302 of the Indian Penal Code. Cognizance of the offence was taken and case was committed to the Court of Sessions. Charge under one head against the appellants was framed on 30.11.2021 for committing offences under Section 302 of the Indian Penal Code. Charge, so framed, was read over and explained to the appellant, to which he pleaded “not guilty” and claimed to be tried. 3 10. To bring home the charge, the prosecution examined altogether 9 witnesses, namely, P.W.1 Rakesh Biruli @ Govind Biruli, P.W.2 Alok Biruli, P.W.3 Basanti Biruli, P.W.4 Subhash Biruli, P.W.5 Vijay Biruli, P.W.6 Kanhaiya Alda, P.W.7 Nitima Kui, P.W.8 Dr. Shivlal Kunkal and P.W.9 Ram Krishna Murmu. The prosecution also produced the following documentary evidence, which were marked exhibits: - Exhibit P.-1/PW 4 Exhibit 1/1/PW 9 Exhibit P-2/PW4 Signature of Subhash Biruli (P.W.4) upon carbon copy of inquest report. Carbon copy of inquest report in writing and signature of A.S.I. Nawleshwar Sharma of Manjhari P.S. Signature of Subhash Biruli (PW 4) upon fardbayan of informant Basanti Biruli (PW 3) Exhibit P-2/1/PW 5 Signature of Vijay Biruli upon fardbayan of informant Basanti Birul (PW 3) Exhibit P-2/2/PW 9 Fardbayan in writing and signature of Ram Krishna Murmu (PW 9) Exhibit P-2/3/PW 9 Forwarding on fardbayan to Manjhari P.S. in writing and signature of Ram Krishna Murmu (PW 9) Exhibit P-4/PW 8 Exhibit P-2/4/PW 9 Endorsement upon fardbayan to register FIR in writing and signature of Ram Krishna Murmu (PW 9) Exhibit P-3/PW 6 Signature of Kanhaiya Alda (PW 6) upon seizure list Exhibit P-3/1/PW 9 Seizure list in writing and signature of PW 9, Ram Krishna Murmu, I.O. for murder weapon ‘Tangi’ having blood stains and blood stains earth. Postmortem report of deceased namely Sanatan Biruly, in writing and signature of PW 8, Dr. Shivlal Kunkal Formal F.I.R. typed by computer operator named Vipan Singh of Manjhari P.S. under supervision and signature of officer-in-charge Vikram Tigga of Manjhari P.S. Relevant portion of confessional statement of accused Gumdi Biruli @ Donda Biruli in writing and signature of Ram Krishna Murmu (PW 9) Biological Report received from F.S.L., Ranchi D.N.A. Report received from F.S.L., Ranchi. Exhibit P-7 Exhibit P-7/1 Exhibit P-6/PW 9 Exhibit P-5/PW 9 11. P.W.1 Rakesh Biruli @ Govind Biruli, P.W.2 Alok Biruli, P.W.5 Vijay Biruli, P.W.6 Kanhaiya Alda and P.W.7 Nitima Kui have been declared hostile. In cross examination, nothing could be extracted from them which could help the prosecution. P.W.3 Basanti Biruli is the wife of the deceased and informant in this case. She has stated that when the deceased forbade the appellant Gumdi Biruli from cutting the Babul tree, the appellant assaulted the deceased with Kulhari (axe) on his head and neck, due to which blood started oozing and the deceased died at the spot. She has stated that the police had recorded her fardbayan. She has stated that the police had seized the blood stained Kulhari (axe) from the house of the appellant in her 4 presence and on the seizure list she had put her thumb impression. She has identified the appellant through video conferencing. In cross examination at paragraph 6 she has stated that at the time of occurrence, she was at her mother’s home and on getting information she had come. At paragraph 7 of her cross examination she stated that she could come to know about the incidence when told by others and she is unable to give name and address of the persons who had informed her about the incidence. P.W.4 Subhash Biruli has identified his signature on the carbon copy of the inquest report, which has been marked Exhibit P-1. He has stated that he had put his signature on the fardbeyan of Basanti Biruli before the police as a witness, which was marked as Exhibit P-2. He is a hearsay witness and has stated that he had heard that the appellant had killed the deceased involving a dispute regarding cutting of tree. He has identified the appellant through video conferencing. P.W.8 Shivlal Kunkal is the doctor who had conducted postmortem examination upon the dead body of the deceased. He found the following: - Rigor mortis was present in upper and lower limbs. External Findings i) Lacerated wound 03 inch x ¼ inch x deep to muscle in left side of neck. ii) Lacerated wound 1.5 inch x ½ inch x deep to bone in right side of forehead. iii) Blood clot in face. Internal Findings i) Head-Parietal bone fractured with meninges lacerated and pale. ii) Thorax – Heart – Both chamber empty, Lungs – Both side empty iii) Abdomen – Stomach – Digested food present Cause of death – Hemorrhage and socked due to above mentioned injuries caused by hard, heavy and sharp object. Time since death – 04 hours to 24 hours The postmortem report was marked as Exhibit P-4. P.W.9 Ram Krishna Murmu is the Investigating Officer. He has proved the writing and signature of Navaleshwar Sharma on the inquest 5 report, which has been marked P-1/1. He has proved the fardbeyan of the informant, which has been marked as Exhibit P-2/2. He has proved the forwarding endorsement on the fardbeyan which has been marked Exhibit P-2/3. He has proved the registering endorsement made on the fardbeyan, which has been marked Exhibit P-2/4. He has proved the formal First Information Report, which has been marked as Exhibit P-5. He has proved the confessional statement of the appellant which is in his writing and signature, which was marked as Exhibit P-6. He has proved the seizure list of blood stained axe and blood stained soil, which has been marked as Exhibit P-3/1. He has stated about recording of statement of witnesses by him in course of investigation. He has given a brief description of the boundary of the place of occurrence. He has also stated about filing of chargesheet No.43/2021 dated 05.08.2021 by him. He has identified the appellant through video conferencing. 12. After closure of the prosecution evidence, appellant was examined under Section 313 of the Code of Criminal Procedure, wherein he denied the charges and claimed to be innocent. 13. The Trial Court, after hearing the arguments of the parties and after going through the evidence, delivered the Judgment of Conviction and Order of Sentence dated 3rd July, 2023 passed in Sessions Trial No. 226 of 2021, and has held the appellant guilty thereby convicted and sentenced him for the offence as detailed in paragraph 1 hereinbefore. 14. Challenging the aforesaid conviction and sentence, the appellant has preferred this appeal. 15. After going through the evidence led by the prosecution, we find that except P.W.3, namely, Basanti Baruli (who is the wife of the deceased and informant in this case), P.W.4 Subhash Biruli (a hearsay witness), P.W.8 Dr. Shivlal Kunkal (medical witness) and P.W.9 Ram Krishna Murmu (investigating officer), all the prosecution witnesses have been declared hostile in this case. The informant though claims herself to be an eye witness, yet from her cross-examination, especially paragraphs 6 and 7, we get an impression that she was also not present at the place of occurrence. Thus, she cannot be said to be the eye witness rather she is a hearsay witness. She stated that after hearing about the incident, she reached the place of occurrence as she was in her another house. P.W.4 Subhash Biruli is a hearsay witness, who identified his signature on the 6 inquest report and fardbeyan of the informant, which were marked as Exhibit P-1 and P-2. P.W.8 Dr. Shivlal Kunkal is the doctor, who had conducted the postmortem examination over the dead body of the deceased and P.W.9 Ram Krishna Murmu is the investigating officer. 16. From the perusal of Exhibit P-7 and P-7/1, it was proved that axe with the blood stains and earth with the blood stains seized by the investigating officer were sent to the Forensic Science Laboratory, Ranchi for forensic examination. D.N.A. profile has been generated from the blood stains of the axe and found to be of human male source of origin, but it was not proved that it was the blood of the deceased. The claimed eye witness and the informant herself contradicts her statement during cross examination at paragraph 6, where she has stated that she was not present at the time occurrence, rather she was at her paternal house and after receiving information of the incidence, she returned. 17. This Court considers the fact that the confessional statement of the appellant was recorded on 23.05.2021 at 20.00 hours and seizure list was prepared on 23.05.2021 at about 18.45 hours, which is earlier to the recording of confessional statement of the appellant. Thus, it is a doubtful proposition that the murder weapon “axe” was recovered on the disclosure made by the appellant. 18. Based on the discussions made above, we find that the prosecution has miserably failed to bring any concrete evidence to prove the guilt of the appellant beyond shadow of reasonable doubt. Learned Trial Court has wrongly raised the presumption against the appellant without giving any finding with regard to the commission of offence under Section 302 of the Indian Penal Code. Accordingly, due to lack of proper evidence and lack of complete chain of circumstances, we feel that it is a fit case where benefit of doubt should be given to the appellant. Thus, extending the benefit of doubt, we are inclined to allow this appeal and acquit the appellant from the charges leveled against him.
Decision
We accordingly, allow this appeal. The impugned Judgment of 19. Conviction and Order of Sentence dated 3rd July, 2023 passed by the Sessions Judge, Singhbhum West at Chaibasa in Sessions Trial No. 226 of 2021 are hereby set aside. The appellant is acquitted from the charges leveled against him. The appellant, namely, Gumdi Biruli @ Donda Biruli is directed to be released forthwith, if not wanted in any other case. 7 20. In view of the final disposal of the appeal itself, the interlocutory application being I.A. No.5842 of 2024 is rendered infructuous. The said interlocutory application, accordingly, stands disposed of. 19. Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment. (Ananda Sen, J.) (Subhash Chand, J.) High Court of Jharkhand, Ranchi Dated, the 24th June, 2024 Kumar/Cp-03 8