UPENDRA RAM AND ANOTHER Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This criminal appeal has been preferred by the accused-appellants being aggrieved and feeling dissatisfied by the judgment and order of conviction and sentence dated 04.05.2007 and 05.05.2007 respectively, passed by the Sessions Judge, Palamau, Daltonganj, in Sessions Trial No. 51 of 2006, whereby, these appellants have been convicted for the offence of murder of Brahamdeo Ram and have been sentenced for life imprisonment.

(2.) Case of the prosecution is that on 12.12. 2004 at 11 a.m. the informant Ram Sunder Ram (P.W-2) gave fardbeyan to police that his brother Brahamdeo Ram (deceased) had a Grocery Shop at home and he also display his shop at Nawa Bazar. Yesterday on 11.12.2004 at 5.30 p.m. his brother was coming to his home in bicycle from Nawa Bazar. At about 6 p.m. when he reached near a Mahuwa tree, located at Purnadih then Upendra Ram (accused) and Satyendra Ram (accused) who were hiding nearby assaulted him in back portion of his head by means of garansa causing fracture in the back side of the skull and brain parts come out. He fell down and died instantaneously. The informant further alleged that earlier there was an altercation and scuffle between the wives of deceased and accused persons for irrigating the field from the well, in which wife of deceased namely Urmila Devi sustained head injury. No information was given to the Police or Choukidar about the aforesaid occurrence. At that time, both the accused persons had threatened to kidnap and kill the informant and his brother Brahamdeo Ram (deceased). The informant further alleged that after the occurrence, one Raghunandan Ram who had seen the occurrence started raising hulla (alarm) and then informant who was there for nature call, rushed to the place of occurrence and saw both the accused persons holding garansa fleeing away towards the eastern side of village-Purriadih. When informant reached the place of occurrence, he found his brother lying dead in the ground, having serious head injuries and spillage of brain had come out from the back side of his head and his brother bicycle and Grocery items and blood-stained red colour towel of accused Satyendra Ram was lying there. The informant further claims that due to earlier altercation and scuffle, the accused persons Upendra Ram and Satyendra Ram had killed his brother Brahmdeo Ram (deceased).

(3.) It is submitted by the senior counsel appearing for the appellants that prosecution has failed to prove the offence alleged against these appellants beyond reasonable doubt. Moreover, there are major contradiction and omission in the deposition of the prosecution witnesses. It is further submitted by the senior counsel appearing for the appellants that Urmila Devi (PW-1) is not an eye-witness at all because it has been: stated by Investigating Officer-PW-8, in his deposition, that PW-1 in her statement, under Section 161 of the Code of Criminal Procedure, before the police, has never stated that she has seen the occurrence. Thus, during course of her examination, there is material improvement in her statement. This is a major contradiction as per proviso to Section 162 of the Code of Criminal Procedure. It is also submitted by the counsel for the appellants that Raghunandan Ram (PW-4), another eye-witness, has turned hostile. It is also submitted by the counsel for the appellants that Mohan Prasad (PW-5) and Lallu Ram (PW-6) are also hostile witnesses. Thus, only left out eye-witness is Ram Sunder Ram (PW-2) because Rekha Devi (PW-3) is also hearsay witness. It is further submitted by the counsel for the appellants that PW-2 is not a trustworthy and reliable witness mainly for the reason that looking to his cross-examination, he has stated that he had rushed at the place of occurrence by hearing alarm raised by PW-4, but, this PW-4 has turned hostile. Thus, this fact has not been proved at all. Counsel appearing for the appellants has further submitted that looking to the cross-examination in para 3 of PW-2, it appears that this witness has stated that he has seen the accused running away from the place, but, he has not seen that these appellants have caused injuries upon the body of the deceased. Thus, PW-2 is not an eye-witness at all of the incident. Moreover, it has been stated by PW-2 in para 3 of his cross-examination that his brother Brahamdeo Ram told him that these appellants beat him, but, this fact has not been stated in the FIR. Thus, there is material improvement of the oral dying declaration given by the deceased before PW-2. Such a vital fact is missing in the FIR. It is also submitted by the counsel for the appellants that so-called murder has taken place on a road nearby village Purnadih. Nobody had stated that dead body was brought at home or not. Murder has taken place during evening hours of 11.12.2004. Police came at the place of occurrence on 12.12.2004 at about 1:30 p.m. and the dead body of the deceased was still on the road. This is normally not possible because Ram Sunder Ram (PW-2), who is brother of the deceased, cannot leave the dead body on the road and has gone at his residence. Whole story is concocted by the prosecution. It is also submitted by the counsel for the appellants that PW-2 has seen the sharp-cutting instrument in the hands of these appellants, which is garansa. Looking to the medical evidence given by Dr. Abhay Kumar (PW-7), who has carried out post-mortem upon the body of the deceased, it appears that this witness has stated in his deposition that injuries sustained upon the body of the deceased are capable of being caused by hard and blunt substance and not by garansa. Thus, there is major discrepancy between the ocular evidence and medical evidence. Counsel appearing for the appellants has further submitted that looking to this major contradiction in the ocular and medical evidence, it appears that PW-2 is a highly interested witness. In para 3 of his deposition, he has stated that he has seen the accused running away from the place of occurrence; meaning thereby, PW-2 has not seen the accused causing injuries upon the body of the deceased. In such situation, PW-2 is untrustworthy and unreliable. This aspect of the matter has not been properly appreciated by the learned trial court and hence, judgment and order of conviction and sentence dated 04.05.2007 and 05.05.2007 respectively, passed by the Sessions Judge, Palamau, Daltonganj, in Sessions Trial No. 51 of 2006 deserves to be quashed and set aside.