MOSO KAITHA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order of conviction and sentence, passed by the 1st Additional Sessions Judge, Chaibasa in S.T. No. 38/2002, whereby the appellant has been convicted vide order dated 5thth April, 2003 for the offence punishable under Sec. 302 of the Indian Penal Code and has been sentenced vide order dated 05thth April, 2003 to undergo life imprisonment. Against this judgment and order of conviction, present Jail appeal has been preferred by the appellant.

(2.) The case of the prosecution is that on 18.09.2001 at 9:30 hrs. (i.e. 9:30 A.M.) the informant Mikhayal Surin(P.W.-2) gave fardbeyan to police that on 16.9.2001 at 18.00 hrs (i.e. 6 P.M.) the informant with his friend Pareya Kaitha (Lohra) after tying animals in the cowshed have gone to channel (Paini) which is situated in the North side of his house to wash their hand and leg. After washing their hand and leg, they reached near Jinora Field and saw that Moso Kaitha @ Moso Lohara (accused) was assaulting Choudhury Dohanga (deceased) and Bali Champia (Deceased) with wooden Chop and when accused saw the informant and his friend, he chased them to assault them with wooden chop but the informant with his friend ran away from there to village and told about the occurrence to the villagers. Thereafter villagers went to the Jinora field and saw Choudhary Dohanga and Bali Champia were lying dead in pool of blood. Then meeting was held in village about the occurrence and the information was given to the police about the occurrence. Five witnesses were examined by the prosecution. <FRM>JUDGEMENT_112_LAWS(JHAR)2_2014.html</FRM>

(3.) It is submitted by the counsel for the appellant that there are major omissions, contradictions and improvements in the deposition of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned Trial Court and hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. It is further submitted by the counsel for the appellant that the incident has taken place on 16thth Sept., 2001 at about 6 P.M. but the FIR was lodged on 18thth Sept. 2001 and there is no explanation worth the name coming from the prosecution for the delayed FIR. It is further submitted that the case of the prosecution is based upon the evidence of so called sole eye witness and the said so called sole eye witness is also a got up witness as there is vast difference between the statement made in the FIR and the deposition given by P.W.- 2. In fact, P.W.- 2 has not seen the incident at all. It is further submitted that as per FIR, the so called eye witness ( the informant) has seen the offence in a field near Water Channel (Paini), whereas, as per deposition given by this sole eye witness of the prosecution as stated in paragraph 1 of his deposition, the incident has taken place in the house of P.W.-2. Moreover, as per FIR, this appellant was causing injuries. It is further submitted that as per narration in the FIR, several blows were given by this appellant to both the deceased, whereas, as per medical evidence, upon one dead body, there is only one injury and upon another dead body, there is only two injuries. Thus, there is inconsistency between the ocular evidence and the medical evidence. It is also submitted by the counsel for the appellant that as per FIR, there is one more eye witness Pareya Kaitha (Lohara) who was accompanying the informant- P.W.-2 and as per narration in the FIR, this Pareya Kaitha (Lohara) is also an eye witness and his statement was recorded by the Investigating Officer under Sec. 161 Crimial P.C. He was also mentioned in the charge-sheet as a prosecution witness, but for any reason whatsoever, this eye witness has been concealed by the prosecution and not examined nor any application has been given by the prosecution to the concerned trial court for dropping of the crucial important eye witness of the double murder nor any order has been passed by the concerned trial court allowing the prosecution for dropping of the eye witness. It is further submitted by the counsel for the appellant that examination of the witnesses cannot be left at the sweet-will of the prosecution, rather it is the duty of the prosecution to examine the crucial eye witness otherwise, adverse inference can be drawn as per Sub-section (g) of Sec. 114 of the Indian Evidence Act 1872 and has also relied upon the decision rendered by the Honourable Supreme Court in the case of Musauddin Ahmed Vs. State of Assam reported in (2009) 4 ECC 26. It is also submitted by the counsel for the appellant that similarly there are other crucial witnesses as stated in the charge-sheet as per example, Mangra Champia, the father of one of the deceased- Bali Champia, who was also present on next day morning i.e. on 17thth Sept. 2001 as stated by Pareya Kaitha (Lohara)-eye witness, who has not been examined by the prosecution. The father namely, Mangra Champia of the deceased- Bali Champia cannot remain silent after the murder of his son but for the reason, FIR was filed at a much belated stage i.e. on 18thth Sept. 2001. There are as many as 18 charge-sheet witnesses, but only five witnesses have been examined by the prosecution. Thus, the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial court, hence the judgment of conviction and order of sentence passed by the learned trial court in ST No. 38/2002 deserves to be quashed and set aside. This appellant has remained in judicial custody for 12 years, 03 months and 17 days as on 09thth Feb., 2014.