LOKESHWAR KUMHAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal has been directed against the judgment of conviction and order of sentence dated 20.05.2004, passed by Addl. Judicial Commissioner, Fast Track Court-9, Ranchi in connection with Sessions Trial No.631 of 1992 corresponding to Ranchi, Silli P.S. Case No.36 of 1990, G.R. Case No.2363 of 1990 whereby the appellants have been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life.

(2.) The facts, emerge from the First Information Report, are that on 16.07.1990 at about 5.30 a.m. Gobardhan Kumhar (deceased) had left home for ploughing the field situated at Nimbad. The informant noticed the appellants having Farsa in their hand, following the deceased with their two associates having bag in their hand. No sooner Gobardhan Kumhar reached near the Bari (field) of Dharma, the informant heard sound of explosion. The informant with his niece Laxmi ran towards the place of occurrence and saw both the appellants hurling blows by means of Farsa causing injury to Gobardhan. On hulla other villagers assembled where after the appellants with their associates fled away. The informant gave information to the police on 17.07.1990 which was reduced to writing and on the basis of information lodged by Ramcharan Kumhar, Ranchi, Silli P.S. Case No.36 of 1990 under Section 302/34 of the Indian Penal Code and Section 3/5 of the Explosive Substance Act against the appellants and two unknown persons was registered. The police, after securing attendance of appellants and also after collecting evidence, submitted charge-sheet and accordingly, cognisance was taken and case was committed to the court of sessions and registered as Sessions Trial No.631 of 1992. The appellants were charged for the offence punishable under Section 302/34 of the Indian Penal Code and they were put on trial. To substantiate the charge prosecution has examined altogether 12 witnesses and proved documents like inquest report, post mortem report, seizure list and First Information Report etc. The learned Addl. Judicial Commissioner, placing reliance on the evidence and documents, held the appellants guilty for the offence punishable under Section 302/34 of the Indian Penal Code and Sentenced them, as indicated above.

(3.) The appellants have assailed the impugned judgment of conviction and sentence mainly on the ground that nobody had seen the occurrence, there was delay in lodging the First Information Report and the explanation extended for the delay is not tenable. The informant Ramcharan Kumhar PW-1 and Laxmi Bala (daughter of the deceased) PW-2 have projected themselves as eye witnesses and tried to describe entire occurrence in their deposition but considering the contradictions and inconsistencies, the testimonies of aforesaid two witnesses are required to discarded. Enmity prevailing between family of the appellants and the deceased is admitted. It is admitted that father of appellants was murdered in which informant was an accused. If the situation was so grave between the two families, it was expected that after seeing the appellants following the deceased armed with Farsa in their hand and that too with two unknown persons, the deceased could have been cautioned or some sort of precaution could have been extended from the informant. The place of occurrence was not visible from the house of informant and that has come in their deposition when they were cross-examined. None of the eye witnesses has said that they had seen any of the accused hurling bomb rather evidence on record speaks that the witnesses reached to the place of occurrence after hearing sound of explosion. PW-1 to PW-3 have stated that they had seen these appellants inflicting Farsa blows to deceased. This story is also not believable for the reason that Dr. Ajit Kumar Choudhary PW-6, who had conducted autopsy on the dead body of Gobardhan, has noticed only one cut injury on the palm extended up to wrist. The eye witnesses have stated that repeated blows by these appellants by means of Farsa were being given but the deceased was having only one cut injury on his palm. This argument also find support from the fact that no information was lodged to police on the date of incident though the occurrence took place in the early morning at 5.30 a.m. If the version of the informant is taken to be true that he had informed the police just after the incident, then what happened to that information, is not before us. Furthermore, none of the villagers who had assembled at the place of occurrence after the incident, disclosed name of the assailants. They have stated before the court that they did not know name of the assailants as to who killed Gobardhan. The unbelievable statement of the witnesses on the point of manner of assault, delay in lodging the First Information Report, non-disclosure of name of the assailants by independent witnesses go to show that Gobardhan was killed by someone and the dead body was lying in the field which was noticed later by the informant and other family members and they have named the appellants after giving thought. Implication of appellants with false allegation considering the enmity prevailing between the parties could not be ruled out. On the point of delay, it is vehemently argued that the informant has stated that he had gone to Ranchi to inform son of the deceased but at the same time, he admits that he returned back to village with son of the deceased by 3-4 O'clock in the afternoon. If the informant with the son of deceased had returned to village by 4 O'clock in the evening, what prevented him to go to the police station to lodge F.I.R. As a matter of fact, the informant and other family members, after consulting with each other, have decided to implicate the appellants in the alleged murder of Gobardhan in order to save themselves and also to take revenge. If the informant had given information to the police on the date of occurrence itself, then why the police did not take action is a question to be answered. The I.O. did not investigate into the matter as to whether any information regarding murder of Gobardhan was given to any police officials on 16.07.1990. No investigation was done on this point. According to Investigating Officer PW-12, the appellants were apprehended within a week but he did not take effort to recover the weapon used for the crime. The blood stained cloth and blood stained soil have been seized from the place of occurrence and it were sent to F.S.L. but no report from F.S.L. has been brought on record by the prosecution. The learned Addl. Judicial Commissioner has failed to address all these questions and therefore, the findings of the trial judge is liable to be set aside.