TIBRA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order of conviction and sentence dated 17th September, 2004 and 18th September, 2004 respectively, passed by , Additional Sessions Judge, Fast Track Court, Sahibganj in Sessions Case No. 142 of 2003, whereby, the appellant, namely, Tibra @ Tibroo Marandi, has been convicted for the offence punishable under Section 302/34 and 460/34 of the Indian Penal Code and sentenced to undergo life imprisonment for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code and further to undergo rigorous imprisonment for ten years for the offence punishable under Section 460 to be read with Section 34 of the Indian Penal Code. Both the sentences have been ordered to run concurrently.

(2.) The case of prosecution is that injured Ram Marandi had given fard-beyan in the Borio Government Hospital before Police Officer of Borio Police Station in the district of Sahibganj on 17th April,2002 that on 16th April, 2002 at about 12:00 O'clock at the mid night, when he was sleeping at his house after taking dinner, this appellant along with other two accused, whose names have been given in the fardbeyan, came after consuming liquor and this appellant having bamboo stick in his hand, gave one blow at the stomach of the informant-Ram Marandi, and thereafter, he was brought to the hospital by his son Kundan Marandi, where he expired during the night of 17th April, 2002, and that is how his fard-beyan is also treated as dying declaration and thereafter, statements of several witnesses were recorded and charge sheet was filed against this appellant, and on the basis of the evidences of PWs 1 to 9 and also, on the basis of other documentary evidences on record, the learned trial court has convicted this appellant for the offence of committing murder of the deceased and sentenced him to undergo life imprisonment for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code as well as rigorous imprisonment for ten years for the offence punishable U/s 460 to be read with Section 34 of the Indian Penal Code.

(3.) It is submitted by learned counsel for the appellant that the learned trial court has not properly appreciated the evidences on record. There are major omissions and contradictions in the depositions of the witnesses. In fact, the eye witnesses are close relatives of the deceased and there are inconsistencies even in their depositions. The prosecution has not come out with a consistent story. Apart from this aspect of the matter, this appellant has remained in jail for approximately 12 years and 10 days as on today and, therefore, if this offence is punishable u/s 304 Part II of IPC, then the purpose of filing of this appeal will be served, because there is no preplanned and well-designed action on the part of this appellant. Moreover, looking to the medical evidences of PW 7, the Doctor, there is only one injury in the abdomen of the deceased which has resulted into his death. Had there been any mens rea on the part of this appellant, there would have been many more injuries. Even otherwise also, as per the fardbeyan given by the deceased himself, this appellant along with other co-accused came after consuming liquor. Looking to this aspect of the matter, as an alternative, it is argued by the counsel for the appellant that this appellant may be punished for the offence punishable under Section 304 Part II of Indian Penal Code.