RABISHWAR RAVISHWAR TUDU Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This criminal appeal has been preferred by the accused-appellant, being aggrieved and feeling dissatisfied, by the judgment of conviction and order of sentence, dated 17-7-2008, passed by learned Addl. Sessions Judge, Fast Track Court No. IV, Dhanbad, in connection with Sessions Trial No. 289 of 2005, corresponding to G.R. Case No. 792 of 2005 arising out of Baliapur P.S. Case No. 18 of 2005 whereby this appellant has been convicted for the offence punishable under S. 302 of the Indian Penal Code for life imprisonment for causing murder of Surajmani alias Surki Devi.

(2.) The case of the prosecution is that on 21st March, 2005 at 11.50 a.m. the informant Babu Lal Soren (P.W.-3) gave fardbeyan to police that about five years ago, his daughter Surajmani alias Surki Devi (deceased) was taken away by Rabishwar Tudu alias Ravishwar Tudu (accused) to his house for marriage and they lived there as a husband and wife, though the marriage was not solemnized according to Adiwashi custom. The informant further alleged that his daughter has no child. When there was a quarrel between Rabishwar Tudu and his daughter, his daughter Surajmani came back to his house and Rabishwar Tudu take her from there, to his house. The informant further alleged that today in the morning at about 7 a.m., mother of Rabishwar Tudu came to his house and informed that Rabishwar Tudu had murdered his wife. After hearing his, informant rushed to the place of occurrence and saw his daughter Surajmani alias Surki Devi lying dead. When informant asked about the occurrence from the neighbours, he came to know that yesterday evening, Rabishwar Tudu had drunk and in the night after eating food with his wife, he started making quarrel with his wife and then slept in the same house. In the morning Rabishwar Tudu told them that his wife is dead. Thereafter neighbours and villagers went to his house and saw Surajmani alias Surki Devi lying there. The informant alleged that people told him that occurrence took place last night between 10 p.m. to 4 a.m. The informant further alleged that earlier also Rabishwar Tudu had assaulted his daughter. The informant claims that Rabishwar Tudu has killed his daughter.

(3.) Learned counsel appearing for the appellant has submitted that the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. It is further submitted by the counsel for the appellant that there is no eye-witness of the occurrence at all. Whosoever what has narrated, the occurrence has been narrated as a hearsay witness and on the basis of the presumption the whole narration has been given. It is also submitted by the counsel for the appellant that as per the case of the prosecution in F.I.R. which is lodged by father of the deceased-Babulal Soren (PW-3) has informed the police that the mother of this appellant-accused came to him and she conveyed him that her son has committed murder of that daughter of the informant. Therefore, the informant (PW-3) rushed at the place of occurrence where he saw the dead body of his daughter. The F.I.R. was lodged and the investigation was started but police has not recorded the statement of mother of the appellant nor she has been examined as a prosecution witness. Thus, the most important witness has not been examined at all by the prosecution. Similarly, nearby the place of occurrence several other persons are also residing but not a single statement has been recorded of the witness who is an independent like Sadhan Mandal, Dharnidhar Mahato and Mohan Mandal etc., as per paragraph 18 onward of the deposition of the Investigating Officer. It is also submitted by the counsel for the appellant that Dharnidhar Mahto (Chowkidar) of the village who had also gone with the mother of the appellant to inform the informant (PW-3) but the prosecution has never recorded the statement of mother of the appellant nor the statement of Chowkidar-Dharnidhar Mahto. The only witness is father of the deceased and the Investigating Officer, others are hearsay witnesses and hostile witnesses. The prosecution has, therefore, failed to prove the offence of murder committed by this appellant. 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 trial Court in Sessions Trial No. 289 of 2005 deserves to be quashed and set aside.