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2018 Supreme(Jhk) 815
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anil Kumar Choudhary, J.
Rabi Manjhi son of Gujo Manjhi & Ors. - Appellants
Versus
The State of Jharkhand - Respondent
Cr. Appeal (SJ) No. 274 of 2006
Decided On : 01-10-2018
Advocate Appeared:
For the Appellants : Mr. Rajeeva Sharma, Mrs. Neetu Singh
For the State : Mr. Shekhar Sinha
Headnote:
Indian Penal Code, 1860 – Section 302/149, 307/149, 337 and 148 – Code of Criminal Procedure, 1973 – Section 313 – Judgment of Conviction – Fardbeyan of the informant in brief is that while the informant- along with his father and his cousin brother-in-law were sitting in outer portion of the house, the accused-appellant persons and others came being variously armed and surrounded the informant-– Rabi Manjhi (who died during pendency of this appeal) exhorted others to kill the informant and his associates upon which the accused-appellant persons and others assaulted the informant and his father Makru Manjhi. – The informant raised alarm upon which the mother of the informant, his uncle Sadhu Manjhi and cousin sister came to save the informant and others and the uncle of the informant namely Sadhu Manjhi was also assaulted. – The motive between the alleged occurrence is that there was bad blood between the parties prior to the alleged date of occurrence because of land dispute between the accused deceased appellant no.1 and Makru Manjhi who died in the occurrence, who were brothers. – On the basis of the fardbeyan of the informant, police instituted Saraiyahat (Hansdiha) P.S. Case and took up investigation of the case. – After completion of the investigation, police submitted police report. – Upon commitment of the case to the Court of Session, charges for the offences punishable under Section 302/149, 307/149, 337 and 148 of the Indian Penal Code were framed against the accused-appellant persons and other accused persons of the case also. – Upon the appellants and the co-accused persons pleading not guilty to the charges, they were put to trial. – Appeal is directed against the Judgment of conviction and Order of sentence passed by the learned 1st Additional Sessions Judge, in Sessions Case whereby and where under, the appellants have been held guilty for the offence punishable under Section 323 read with Section 149 of the Indian Penal Code and have been sentenced to undergo R.I. for one year. – Held, Court find that all the five witnesses related to the deceased being P.Ws. 1 to 5, have categorically stated that the occurrence took place in the bungalow of the informant. – P.W.6 the sole independent witness of the case has categorically stated that the occurrence took place in the field of Chaprasi Manjhi who is the brother of the accused-appellant persons. – The P.W.6 has not been declared hostile nor there is any material in record to disbelieve his testimony, his being an independent witness. – The prosecution for the reason best known to them has chosen not to examine Investigating Officer as a prosecution witness. – When the Investigating Officer was examined as a court witness, as rightly submitted by the learned Senior Advocate for the appellants, he did not whisper a word about the place of occurrence. – When in his cross-examination, he was asked about the boundaries of the place of occurrence, he could not say the boundaries of the place of occurrence and instead replied that the same has not been mentioned in the case dairy. – So under such circumstances, Court find force in the submission of the learned Senior Advocate for the accused-appellant persons that in the facts of the case, the prosecution suppressing the place of occurrence cannot be ruled out and certainly a doubt is created about the real place of occurrence. – Though the prosecution witness P.Ws.1 to 5 have stated that the police seized the blood stained soil as well as blood stained weapons but neither the seizure list relating to the same nor the seized material objects were placed before the trial court without any plausible reason. – It is the admitted case of the prosecution witnesses that for the selfsame occurrence, a counter case was also been instituted wherein, the informant and others were in custody for certain time. – There is nothing to disbelieve the testimony of the P.W.6 that the members of the informant party were from the village of the maternal grandfather of the informant, and the P.Ws. 1 to 5 were silent about their presence, which certainly amounts to suppression of fact. – Court is of the considered view that this is a fit case where a doubt is created regarding the case put forth by the prosecution hence this is a fit case where the accused-appellant persons be acquitted by giving them the benefit of doubt. – Accordingly the accused-appellant persons are acquitted of the offence punishable under Sections 323/149 of the Indian Penal Code, by giving them the benefit of doubt. – Impugned judgment of conviction and Order of sentence passed by 1st Additional Sessions Judge, in Sessions Case being not sustainable in law is set aside so far as it relates to the conviction and sentence of the above named accused-appellant persons only. – Appeal Allowed
Anil Kumar Choudhary, J.
Perusal of the record reveals that the appellant no.1 – Rabi Manjhi died on 15.10.2017 as has been mentioned in the impugned order dated 24.09.2018, passed by the learned Additional Sessions Judge –I-cum-Special Judge, Dumka, in S.C. Case No. 223/95, hence this appeal abates so far as the appellant no.1 – Rabi Manjhi is concerned.
2. Registry is directed to delete the name of the appellant no.1- Rabi Manjhi from the cause title of the appeal memo.
3. Rest of the seven appellants i.e. appellant nos. 2 to 8 namely Jitu Manjhi, Arvind Manjhi, Sarju Manjhi, Karu Manjhi, Dhukh Haran Manjhi, Bhago Rana @ Bhagwat Rana and Ramlakhan Manjhi @ Lakhan Manjhi respectively have surrendered in the learned court below.
4. Heard the parties.
5. This appeal is directed against the Judgment of conviction and Order of sentence dated 28.01.2006 passed by the learned 1st Additional Sessions Judge, Dumka, in Sessions Case No.223 of 1995whereby and where under, the appellants have been held guilty for the offence punishable under Section 323 read with Section 149 of the Indian Penal Code and have been sentenced to undergo R.I. for one year.
6. The brief facts of the case as unfolded in the fardbeyan of the informant in brief is that on 17.04.1991 at about 10:30 A.M. while the informant-Pramod Manjhi along with his father Makru Manjhi and his cousin brother-in-law-Suresh Mandal were sitting in outer portion of the house, the accused-appellant persons and others came being variously armed and surrounded the informant-Pramod Manjhi, Makru Manjhi (who died in the occurrence) and Suresh Mandal. Rabi Manjhi (who died during pendency of this appeal) exhorted others to kill the informant and his associates upon which the accused-appellant persons and others assaulted the informant and his father Makru Manjhi. The informant raised alarm upon which the mother of the informant, his uncle Sadhu Manjhi and cousin sister came to save the informant and others and the uncle of the informant namely Sadhu Manjhi was also assaulted. The motive between the alleged occurrence is that there was bad blood between the parties prior to the alleged date of occurrence because of land dispute between the accused Rabi Manjhi (deceased appellant no.1) and Makru Manjhi who died in the occurrence, who were brothers. On the basis of the fardbeyan of the informant, police instituted Saraiyahat (Hansdiha) P.S. Case No. 43 of 1991 and took up investigation of the case. After completion of the investigation, police submitted police report.
7. Upon commitment of the case to the Court of Session, charges for the offences punishable under Section 302/149, 307/149, 337 and 148 of the Indian Penal Code were framed against the accused-appellant persons and other accused persons of the case also. Upon the appellants and the co-accused persons pleading not guilty to the charges, they were put to trial.
8. In support of its case, the prosecution has altogether examined6 witnesses while the doctor and the Investigating Officer have been examined as court witness no. 1 & 2 respectively. Out of the 6 witnesses examined by the prosecution, P.W.1 – Sadhu Manjhi who was examined in court on 2nd day of May, 2003 deposed that the occurrence took place 12 years prior to his examination in court. He further stated that at 10:00 A.M. in the house of Makru, the deceased Makru, Pramod and Suresh were sitting. Pramod was ill. Rabi Manjhi (since deceased) along with 11 others including the accused-appellant persons came being variously armed. Rabi assaulted Pramod with tangi on his head. Saguni Manjhi assaulted on the head of Makru. Binod assaulted with farsa on the head of Makru. Shyamsunder also assaulted Makru. Makru Manjhi fell down and died. When the P.W.1 went there, Dukharan assaulted with tangi on his head. Bhago assaulted on the hand of the P.W.1 and Ramlakhan also assaulted P.W.1 with lathi. Jitu, Arvind, Sarju and Karu assaulted Sunaina Devi and Nuneshwari Devi with lathi
