BODH MANJHI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal has been preferred against the judgment of conviction and order of sentence both dated 28th September, 1993 passed by learned 4th Additional Sessions Judge. Palamau in Sessions Trial No. 286 of 1988. The appellants have been convicted for the offence punishable under Section 302 to be read with Section 149 of the Indian Penal Code and sentenced to undergo Life Imprisonment and further they have been convicted for the offence punishable under Section 323 to be read with Section 149 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for six months. Appellant No.1 namely, Bodh Manjhi who is original accused No.3 has been convicted for the offence punishable under Section 148 of the Indian Penal Code and sentenced to - undergo Rigorous Imprisonment for one year. Appellants namely Prabhu Manjhi, Charkhu Manjhi, Jageshwar Manjhi @ Rajeshwar Manjhi @ Rameshwar Manjhi, Hardu Manjhi, Indal Manjhi and Patuka Devi have been further convicted for the offence under Section 147 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for six months. All the sentences have been directed to run concurrently.

(2.) IT is a case of the prosecution that on 3rd June. 1985 at about 01:00 a.m., the informant (PW 4 -injured eye -witness) gave his fardbeyan to the police that his brother namely. Nandu Manjhi was in need of money and. as such he had sold his wrist watch to Indal Manjhi (appellant No.6) two days ago and in the afternoon of 2nd June, 1985. appellant No. 6 came to Nandu Manjhi and wanted to return the wrist watch on the plea that it was not working properly. Nandu Manjhi was not prepared to take back the wrist watch and to refund the money. Altercation took place and Indal Manjhi (appellant No.6) went away after giving threat to Nandu Manjhi. On the same night when the informant and his family members were sleeping all the accused persons came with the weapon like bhujali a sharp cutting instrument stone and -laihi at the house of the informant during night hours at about 11:00 p.m. on 2nd June, 1985 and they - assaulted Sukhlal Manjhi (father of the informant) who later on expired on the next days morning at about 06:00 a.m. They also caused injury to Santu Manjhi (PW 4 -Informant) as well as to Kusumbari Devi (PW 5 -mother of the informant). Asha Devi (PW 6 -wife of the informant) was also present in the house who has also seen the incident. Sukhlal Manjhi became unconscious and immediately he was taken to Panki Hospital for treatment, where he died on the next day's morning i.e. on 3rd June, 1985 at about 06:00 a.m. PW 7 -Dr. Akhauri Singeshwari Prasad had attended the injured Sukhlal Manjhi at Panki Hospital. The injury report was also prepared by the said doctor which is marked as Ext. -3/1. PW 7 had also examined Santu Manjhi (PW 4) and his injury certificate is also proved by PW 7, which is marked as Ext. -3. PW 7 has also proved the injury certificate of PW 5, who had also sustained injury Post -mortem of Sukhlal Manjhi was carried out by PW 1 - Dr. Arun Kumar Sinha. Post -mortem report has been marked as Ext. -l.

(3.) IT is vehemently submitted by learned counsel for the appellants that the so called eye -witnesses of the incident who are PW 4. PW 5 and PW 6 have actually not seen the incident at all. None of these witnesses has categorically stated that Bodh Manjhi (appellant No.1 -original accused No.3) has caused injury to the deceased, namely. Sukhlal Manjhi. There is general narration of the incident given by these three witnesses. Moreover, the injuries sustained by the deceased as narrated by the medical evidence are not tallying with the weapon alleged to have been used by appellant No.1 -original accused No.3. There is discrepancy between ocular evidence and medical evidence. It is also submitted by learned counsel for the appellants that no independent witness has been examined by the prosecution though there are independent witnesses. As per the evidence of Investigating Officer who is PW 9 there is no recovery of the weapon by the prosecution. It is also submitted by the learned counsel for the appellants that though the appellants have also sustained injuries but, they have not been explained by the prosecution. It is further submitted by the learned counsel for the appellants that there was no light at the place of occurrence and. Therefore, there is no proper identification of the appellants. All the witnesses, especially PW 4, PW 5 and PW 6 are interested witnesses as they are close relatives of the deceased. These aspects of the matter have not been properly appreciated by the learned trial Court. It is also submitted by the learned counsel for the appellants that the charges framed by the trial Court has also been altered by the trial Court on 13th July, 1993 i.e. after examination of all the witnesses and no opportunity was given to the appellants to cross -examine the witnesses. This aspect of the matter has also riot been properly appreciated by the trial Court and. hence the judgment of conviction and order of sentence passed by the trial Court deserves to be quashed and set aside.