AMIN MAJHI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present appeal has been preferred against the judgment and order of conviction and sentence, dated 25th June, 2002, passed by learned 2nd Additional Sessions Judge, Seraikella, in Sessions Trial No. 25 of 1995, whereby, both the appellants, namely, Amin Majhi and Ganesh Majhi, have been convicted for the offence under Section 302 of the Indian Penal Code to be read with Section 34 thereof and sentenced to undergo rigorous imprisonment for fife. Both of them have also been imposed with a fine of Rs. 10,000/- each and in default of payment of fine, further imprisonment of six months has been awarded against each of them. It is the case of the prosecution that on 11th December, 1994 at 10.30 a.m. the informant Gobind Majhi (PW-4) gave his Fardbeyan to the police that his father Sripat Majhi (deceased) was going to Village-Debadih on 10th December, 1994 at about 4.00 p.m. For offering Puja and Jharphook, after instructing Narayan Murmu (PW-2), Dilip Murmu (PW-8) and one Bengal Hansda to reach at the bridge at Village Bongadungri. Father of the informant reached at the said bridge earlier and was waiting for arrival of Narayan Murmu (PW-2) and Dilip Murmu (PW-8). In the meantime, the accused persons arrived at Bongadungri bridge and attacked the father of the informant and cut his throat by Bhujali blows. It has been further stated that while the accused persons were cutting the throat of his father, Dilip Murmu (PW-8) also arrived at the scene of offence, but, by that time his father was dead. Both the accused persons threatened Dilip Murmu (PW-8) of dire consequences and thereafter, fled away from there. It has been further stated by the informant that Narayan Murmu and Bengal Hansda also reached the place of occurrence shortly after the incident. It is further alleged that the motive for the alleged murder is the family dispute and land dispute, which is going on in the court.

(2.) On the basis of the aforesaid Fardbeyan/statement. First Information Report was lodged on 11th December, 1994 at 18 hours (6.00 p.m.). Thereafter, the investigation was carried out by the police and on the basis of the evidences, collected during the course of investigation, charge-sheet was submitted against both the appellants-accused and the case was committed to the court of sessions where the case was numbered as Sessions Trial No. 25 of 1995 and on the basis of the evidence and depositions, given by the prosecution witnesses i.e. PW-1 to PW-10, the learned trial court has passed the impugned judgment and order of conviction and sentence against both, the appellants, namely, Amin Majhi and Ganesh Majhi, convicting both of them for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code for causing murder of Sripat Majhi and sentencing them to undergo rigorous imprisonment for life. Both the appellants-accused have also been imposed with a fine of Rs. 10,000/- each and in default of payment of fine, to undergo imprisonment for six months.

(3.) We have heard learned counsel for the appellants, who has submitted that the learned trial court has not properly appreciated the major omissions, contradictions and improvements in the depositions of the prosecution witnesses, since the so-called sole eye witness i.e. P.W. 8 is, in fact, not the eye witness at all, especially looking to paragraph No. 13 of his deposition. It is also submitted by the learned counsel for the appellants that the police has not come out with clean hands, because as per the sole eye witness, namely, Dilip Murmu (PW-8), he and two others had gone to the police station on the date of incident i.e. on 10th December, 1994 at about 7.00 p.m. and they had stated before the police that Sripat Majhi has been murdered and his throat has been cut. But, the police has recorded First Information Report on 11th December, 1994 at 18 hours. Thus, the so-called First Information Report is also a concocted document. Moreover, the Investigating Officer has not been examined as a prosecution witness, which is fatal in nature, looking to the deposition of PW-8 and, therefore, PW-8 is unreliable and untrustworthy witness. The informant (PW-4) is also a hearsay witness, who has stated that he is son of the deceased and he was informed by Dilip Murmu (PW-8) about the occurrence. Gobind Majhi (PW-4) is also a hearsay witness. PW-5 is a hostile witness and has not supported the case of the prosecution. It is also submitted by the learned counsel for the appellants that PW-10, who is a Clerk of some Advocate, was never cited as a witness in the charge-sheet and, as such, he cannot prove First Information Report, Fardbeyan or signature of the police. But, despite these facts, the learned trial court has marked the First Information Report and Fardbeyan as Ext.-5 and Ext.-4. This type of "universal witness" ought not to have been examined by the learned trial court otherwise any person will come as a witness in any trial, even though he is not knowing the facts of the case. It is further submitted by the learned counsel for the appellants that in fact, there is no evidence at all against these two appellants and the prosecution has failed to prove the offence of murder, to have been committed by these appellants, beyond reasonable doubt. This aspect of the matter has also not been properly appreciated by the learned trial court and hence also, the impugned judgment and order of conviction and sentence, passed by the learned trial court, deserves to be quashed and set aside.