Jharkhand High Court
Hari Singh Son Of Brindban Singh vs The State Of Jharkhand on 29 October, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 490 of 2002
[Arising out of judgment of conviction and order of sentence both
dated 22.07.2002 passed by learned 1st Additional Judicial
Commissioner, Khunti (Ranchi) in Sessions Trial No. 621 of 1992]
1. Hari Singh son of Brindban Singh
2. Budhu Basmahali son of Gondal Basmahali
3. Yogendra Basmahali son of Dabar Basmahali
4. Govind Basmahali son of Natwar Basmahali
All residents of Village Bhorgadi, P.S. Bundu, District Ranchi
.... .... .... Appellants
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellants : Mr. A.K. Sahani, Advocate
Mr. Ajit Kumar, Advocate
For the State : Mr. Pankaj Kumar, P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Reserved on: 24.10.2024 Pronounced On: 29.10.2024
Per Gautam Kumar Choudhary, J. Appellant nos.1 and 2 have died and the
Criminal Appeal on their behalf has abated vide order dated
24.10.2024 and hearing of this appeal is confined to appellant nos.3 &
4 namely Yogendra Basmahali and Govind Basmahali.
2. Appellants are before this Court in appeal against the judgment
of conviction and sentence under Sections 302/149 of the IPC.
3. Informant is the younger brother of the deceased and on his
statement recorded on 28.12.1989 at 11 O'clock in night, the case was
registered. As per FIR, on the said date at 5:30 p.m., informant was
returning with his elder brother- Lil Mohan Munda (deceased) from
Humta Bazar. His another brother- Chhotan Munda was also
following them. At 5.30 p.m., when they reached near the pond of
Bahadih Simama, then both these appellants and three others
surrounded his elder brother, assaulted him with lathi and Baluwa
and caused his death. Haricharan Singh Munda was wielding a
Baluwa (pointed weapon) by which he inflicted injury over the head
of the deceased and other part of the body. Other four accused persons
also assaulted him causing fatal injury. They also tried to assault the
informant but he somehow made good his escape. Younger brother of
the deceased- Chhotu Munda has also witnessed the incidence.
4. On the basis of the fardbeyan, Bundu (Khunti) P.S. Case
No.108/89 was registered against altogether five accused persons
including these appellants under Sections 147, 148, 149, 302, 341 of the
IPC. Police on investigation found the case true and submitted charge
sheet against four accused persons including these appellants under
Sections 147, 148, 149, 302 and 341 of the IPC and they were put on
trial of charge under these Sections.
5. Altogether nine witnesses were examined on behalf of
prosecution and the relevant documents including post-mortem
examination report were adduced into evidence and marked as
Exhibits 1 and 2.
6. It is argued by the learned counsel on behalf of the appellants
that there was no direct eye witness to the incidence. Claim of P.W. 2,
P.W. 3 and P.W. 4 that they had witnessed the incidence, is falsified by
the testimony of P.W. 1, who being Chowkidar deposed that after
hearing about the incidence, when he went to the place of occurrence,
he found the dead body of the deceased (Lil Mohan Munda) near the
pond on Hunta Road, no one of his family was present there. He then
informed about the incidence to his family members. In his cross-
examination, he has further added that he gave this information to Lal
Mohan Munda (informant) and his brother Chhotan Munda at their
residence. The Investigating Office has also not been examined and
therefore, place of occurrence could not be established by the
prosecution. Further, vital contradictions are also there which could
not be proved.
7. Learned A.P.P. has defended the judgment of conviction and
sentence.
8. Deceased died a homicidal death is objectively established by
the Doctor- P.W. 9 (P.W. 9 wrongly numbered as P.W. 8), who
conducted the post-mortem examination on the dead body. As many
as eight lacerated and two incised wounds were found on the dead
body which were ante-mortem in nature and death was due to these
injuries as detailed in the post-mortem examination report (Exhibit 2).
This part of the prosecution case is not in challenge in appeal.
9. P.W. 2, who is cousin brother of the deceased, claims himself to
be returning from the market along with the deceased when the
incidence took place which is however, not in consonance with the FIR
where the informant has not named this witness to be coming with
them. His attention was also drawn in the cross-examination that he
was not present at the place of occurrence. Since the I.O. has not been
examined, his statement given to the police, could not be proved.
Under the circumstance, P.W. 2 cannot be accepted as an eye witness.
10. P.W. 3-Informant and his brother- Chhotan Munda have been
referred to have accompanied the deceased at the time of incidence.
Testimony of both these witnesses cannot be reconciled with the
testimony of P.W. 1 wherein he has specifically stated that when he
went there, he found the body of the deceased lying there, and then he
informed his family members. P.W. 1 has not been declared hostile
and there is no reason to discard his testimony. Even otherwise it
appears to be implausible that both these brothers, who are full
brothers of the deceased, remained a mute witness to the incidence,
while their brother was beaten to death. Under this circumstance, the
testimony of P.W. 3 and P.W. 4 cannot be accepted.
11. P.W. 5, P.W. 6 and P.W. 8 have been declared hostile and P.W. 7
is not an eye witness.
In the absence of any credible direct eye witness, the prosecution
has failed to prove its charge. Judgment of conviction and sentence, is
not sustainable and is accordingly, set aside.
Criminal Appeal is allowed.
Since appellant nos.3 & 4 are already on bail, their sureties are
discharged from the liability of their bail bonds.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court
concerned along with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 29th October, 2024
AFR/Anit
